Cybersquatting cases branded as 'biased'

When Irving Remocker from Glasgow won the right to keep the domain name for his chess Web site, yourmove.com, in the face of legal action from £20bn insurance giant CGNU earlier this year, the odds were against him.

A new report published by a professor of law specialising in Internet and e-commerce law at the University of Ottawa shows that in such cases, the odds are stacked overwhelmingly in favour of the complainant.

Those raising an action for a name registered under the .com, .org and .net domains have the choice of four forums in which they can settle their complaint. But the study, carried out by Professor Michael Geist with the help of five students at Ottawa University, found that complainants win 82.2 percent of the time when they take their grievance to the World Intellectual Property Organization (WIPO).

WIPO did not return a request for comment.

A similar bias was found with complaints taken to the other main body that deals with domain name disputes, the US-based National Arbitration Forum. Two smaller bodies, which also handle disputes --- EResolution and the CPR Institute for Dispute resolution -- rule in favour of trademark holders in 59.1 percent and 63.4 percent of cases respectively. All four bodies use a process called the Uniform Domain Name Dispute Resolution Policy (UDRP), which was drawn up by the body that oversees the Internet, ICANN.

The UDRP is supposed to be an impartial process, but Professor Geist's study found that complainants can manipulate the process to give themselves a better chance of winning a case. Complainants are often trademark holders who feel their rights have been infringed by others.

Professor Geist's study, which analysed more than 3,000 cases, found that the outcome was closely related to the composition of the adjudicating panels. "By far the most important finding is the dramatic difference in case outcomes in single versus three-member panel cases," says Geist. In cases heard by a single panellist -- which account for 93 percent of the total -- complainants win 83 percent of the time. The odds are more even when there is a three-member panel, with complainants winning 60 percent of such cases, but it is the person bringing the claim who gets to decide how many panellists should hear it.

If the complainant chooses a single panellist, the defending party does have the right to increase this number to three, but rarely does so because they have to pay the extra cost. Raising a dispute resolution action for one domain name with a single WIPO panellist will cost the party bringing the action the sum of $1,500; instructing three panellists costs $3,000.

Professor Geist blames "inconsistent, wrongly decided and poorly reasoned UDRP decisions" for the effect of the number of panellists on the outcome. But complainants are often as wary of the single-panellist decision as are the people they are trying to wrest control of the domain name from: Professor Geist says this is why complainants may favour three panellists even though the odds of winning may be lower.

The report has added fuel to the argument of those who say the process needs reform. Andrew Lothian, chief executive of Demys, the Internet and domain name consultancy that handled the case for Irving Remocker's yourmove.com, said, "we've always known that WIPO's cases were decided in the majority in favour of complainants. Now this study adds some flesh on the bones. The message for respondents is that they should always seek to have a three-member panel allocated."

Nominet, the registry for the .uk domain name, continues to distance itself from the UDRP and has recently updated its own resolution procedure, which is due to go live on 24 September.

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