Monday, August 16, 2010

URS and Finality: Default and Appeal

This will be my final substantive post related to the URS, so it is fitting that the issue is finality. I will then post some general conclusions. The IRT report states, “[s]hould a Registrant find their domain name has been taken down after the fourteen (14)-day Answer period has passed and wishes to file a legitimate Answer to the Complainant, The Registrant may file a Default Answer to the third-party dispute provider at any time during the life of the domain name registration.”

In the public comments section of the most-recent DAG, trademark owners and those representative of trademark owners have contended that the URS is uncertain for trademark owners. In fact, the letters from Com Laude and Marques-ECTA both assert that, in the current draft of the DAG, the “[d]efaulting respondent can apply for de novo panel review for up to two years,” as opposed to the original proposal from the IRT, which only allowed for “[r]econsideration by Ombudsman or appeal to relevant court.”

But the IRT proposal for the URS specifically included a provision for the possibility that a Registrant to file a Default Answer subsequent to a finding against the Registrant under the URS, completely outside of the appeal process. Moreover, even if a losing Registrant filed a Default Answer, the time line related to the issuance of decision from the Examiner would begin to run, meaning a decision would likely be rendered within three business days and, at most, 14 business days. Finally, there have been remarkably few appeals of decisions related to abusive domain name registrations throughout the history of the UDRP. Although the DAG contemplates an appeal process, the nature of that process is left to the purview of the dispute resolution providers, ignoring the IRT’s recommendation of an Ombudsman and the STI’s recommendation to provide three-member panels on appeal. It will be interesting to see if the dispute resolution providers who contract with ICANN to provide URS services will include an appeal process and what the process may be.

1 comment:

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