The Dilemmas of UDRP

 

Just an Opinion!

Now, if one looks at Paragraph 4(k) of the UDRP Policy, then the scenario of non-implementation / approaching independent resolution w.r.t to the decision of the Panelist(s) (one or three) is as mentioned:

My contention is (could be opposed too) that the remedy available for the cctld (let's say at any national dispute redressal level for eg. INDRP), would be more robust if being compared to what remedy is available for the gtld domain name disputes at UDRP Provider(s). The reasons I would surmise:

1.   Firstly, before anything else, let the domain names also issue an examination report of the similar domains, and then be awaited for a reply to be sent by the probable / possible registrant to the designated dispute redressal forum, who then is authorized to issue the same, in accordance with any amended policy & rules, whose appeal can be ordered at the domestic level who takes care of the cctld domain related disputes.   

2.      Secondly, take this chronological order being followed if I’m not wrong. The Policy has been adopted by the ICANN, and being implemented by the WIPO, narrowed down to the selected Providers, and further narrowed down to the Panelists, whose order won’t be implemented if in case, either of the party gets the decree at the local court within 10 days. Correct? And in any case, indemnify the Panelists and Providers themselves. So, what’s the point of autobahn not being taken?

3.      In any case, no adverse administrative action is taken until 10 days, if, either of the party, gets an order from the local jurisdiction court. Then honestly, shouldn’t the cctld approach (at the national dispute redressal level) is more convenient where an arbitration award would be binding on both the complainant as well as on the respondent?

4.      Thus, instead of UDRP, shouldn’t at the national level in every nation where the Internet is being accessed, and further vide any designated redressal forum being appointed, to cater the proceedings of the domain name disputes? In any case, both the complainant and respondent indemnify the Providers of the domain name dispute. Just alike in the case of NIXI, or any other provider who deals with the cctld complaints at national level. Thus, as INDRP works at the national level, wherein if in case of a Cybersquatting Act, then rather going to UDRP Providers, one should be approaching at the national level designated domain dispute redressal forum, the decision of which may include the local jurisdiction laws and rules as well, acceptable to both the parties.

5.      Another reason is the cost. We’re dealing in the local currency, wherein the expense would be lesser compared to the UDRP.

6.      And as the proceedings would be initiated at the local jurisdiction and the award would be awarded as per the local Arbitration & Conciliation Act / Rules.

7.      Just go vide the Arbitration and Conciliation Act at the local jurisdiction of any nation, and let the ICANN or WIPO implement the award, whether it is the gtld or the cctld.

8.      And there’s no need of single or multiple panelists or the split of any fees, if the 3 Panelists are being selected by the Respondent.

9.      Under the UDRP Policy, the remedies are restricted, either cancellation of the domain name or the transfer of the domain name. But under the Arbitration & Conciliation Act, the award may also include other several factors against the respondent.  

Now, this it is just my opinion. It may be absolutely wrong also. The question is, what is more convenient? Approach at the local level, to initiate an action, just alike we do it in case of cctld; or, just rely onto the UDRP for the gtld, which in case, could be dragged, once and if in case, either of the party initiates the local lawsuit, as mentioned in the Section / Paragraph 4(k) itself. And once it is being dragged, then it will take years, and not everywhere the system is robust.  And in any case, one always prefers that the Panelists selected be from the country of their own nationality. Correct?😊

© Pranav Chaturvedi