The UDRP mandates that “[i]n all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case,” Paragraph 10(b) of the Rules of the Policy. And, because a dispute resolution should not be a roulette wheel, the ICANN panelists aim for a high degree of predictability and consistency. This is achieved through “a strong body of precedent” which notes the Panel in Pantaloon Retail India Limited v. RareNames, WebReg, D2010-0587 (WIPO June 21, 2010) “is strongly persuasive” even if not binding. The story behind “not binding” comes from the WIPO Overview of Panel Views on Selected UDRP Questions (the “WIPO Overview”) published in 2005. It states that the UDRP does not operate on a “strict doctrine of precedent,” which may be true but (as I have pointed out before) it is rare for a Panel not to cite precedent and (although less often) case authority.
Many of the formative principles of UDRP jurisprudence were quickly identified and cogently laid out in early decisions. Where there were (and continue to be) uncertainties of construction Panels sought (and seek) to build and refine the work of their colleagues. There are also decisions setting forth or proposing constructions and legal standards which fail to ripen to consensus that have either been abandoned as dead ends or rejected in later decisions. This can be seen, for example, in Igor Lognikov v. Web Ventures, Nerdec, Inc. and Charles Edmunds, D2009-1684 (WIPO January 29, 2010) in which Respondent cited cases to the effect that “the existence of a mark as to the date of registration is a rigid pre-requisite for a finding of bad faith registration.” The Panel noted, however,that “these were both cases in early days of the existence of the Policy. Things have moved on from then.”
One of the principal tasks for early Panels was to assure parties that they could expect a fair hearing based on the evidence and the law; not statutory law, but domain name law based on the Policy’s text as informed by the WIPO Reports and interpreted by prior Panels. There has been some discussion particularly as it relates to laches whether “law” is an inclusive term that subsumes “equity.” According to the Panel in Ni Insan Kaynaklari Personel ve Danismanlik Limited Sti v. Timothy Michael Bright, D2009-0315 (WIPO May 7, 2009) “the Policy is not a proceeding in ‘equity’ in which a panel seeks to generally determine whether one party or another has acted more or less fairly toward the other, thereafter fashioning a ‘just’ remedy.” “It is possible” (the Panel further noted) “for a respondent to be infringing the trademark rights of a complainant, yet be found not to have acted in bad faith.” This refers to the Policy’s requirement for conjunctive bad faith. If the holder’s claim is for trademark infringement its remedy is in a civil court of law.
For claims within the Policy’s jurisdiction Panels have emphasized that decisions “should consist of more than, ‘It depends [on]what panelist you draw’,” Time Inc. v. Chip Cooper, D2000-1342 (WIPO February 13, 2001) (<lifemagazine.com>). It is particularly important for a jurisprudence that authorizes the Panel to order a domain name forfeited to the complaining party to adhere to standards articulately expressed and consistently and objectively applied. The majority in Time “believes potential users of the UDRP are entitled to some degree of predictability.” That is, if “a principle enunciated in a decision is well-reasoned and repeatedly adopted by other panels, the majority believes that absent compelling reasons which require a determination otherwise, that the rule established should be respected.” “[U]sers of the internet are better served through panel decisions that promote consistency and predictability.” Predictability is assured by the Policy’s openness in requiring public accessibility of all decisions. The database then becomes the source of authority.
Levine Samuel, LLP <researchtheworld.com>
Gerald M. Levine <udrpcommentaries.com>
E-Mail gmlevine@researchtheworld.com