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<xTITLE>Lest We Forget the UDRP</xTITLE>

Lest We Forget the UDRP

by Amy Schmitz
July 2020 Amy Schmitz

With all the talk of online arbitration in the wake of the pandemic, we forget that online proceedings have been the norm for a long time in certain areas, like cybersquatting disputes.  The non-final online administrative resolution process under the Uniform Dispute Resolution Procedures (UDRP) through Internet Corporation for Assigned Names and Numbers (ICANN) has been around for a long time. See Jason M. Osborn, Note, Effective and Complementary Solutions to Domain Name Disputes:  ICANN’S Uniform Domain Name Dispute Resolution Policy and the Federal Anticybersquatting Consumer Protection Act of 1999, 76 NOTRE DAME L. REV. 209, 214 (2000). The UDRP was adopted on August 26, 1999, and the implementation documents were approved on October 24, 1999. Internet Corp. for Assigned Names and Numbers (ICANN):  Rules for Uniform Domain Name Dispute Resolution Policy, 39 I.L.M. 952 (2000); World Intellectual Property Organization (WIPO), Arbitration Rules, [http://www.wipo.int/amc/en/arbitration/rules/index.html] (last visited July 8, 2020).

Parties have used the UDRP online procedure to obtain a relatively quick and cheap determination of who may use a contested domain name. These UDRP procedures allow parties to present their cases online to a panel that must provide each party “a fair opportunity to present its case.” The panel consists of one or three “arbitrators” at the election of either party.  Panelists must be impartial and independent, and all communications between panelists and the parties must be made through a case administrator appointed by the dispute resolution provider.  The panel then produces a written non-binding decision on the parties’ claims within 14 days of the panel’s appointment. See Virtual Countries, Inc. v. S. Afr., 148 F. Supp. 2d 256, 259–61, 265 n.10 (S.D.N.Y 2001) (explaining UDRP’s development).

Importantly, the UDRP is not “arbitration” under the FAA.  This is mainly because it is not binding.  Parisi v. Netlearning, Inc., 139 F. Supp. 2d 745, 751–53 (E.D. Va. 2001) (the UDRP proceedings do not constitute binding arbitration under the FAA);  see also Lockheed Martin Corp. v. Network Solutions, Inc., 141 F. Supp. 2d 648, 651–52 (N.D. Tex. 2001) (explaining UDRP’s purpose and process); Barcelona.com, Inc. v. Excelentisimo Ayuntamiento De Barcelona, 330 F.3d 617, 624 (4th Cir. 2003) (“Because the administrative process prescribed by the UDRP is “adjudication lite” as a result of its streamlined nature and its loose rules regarding applicable law, the UDRP itself contemplates judicial intervention, which can occur before, during, or after the UDRP’s dispute-resolution process is invoked.”).

Although the process is not truly online “arbitration” due to its non-final nature, it provides an example of how evaluative ODR has been used for dispute resolution in specialized areas. Proceedings must be online unless the panel specifically determines that it is “an exceptional matter” and therefore an in-person, telephonic, or teleconferenced hearing is necessary.  In addition, they only cover cancellation and transfer of the domain names abusively registered and not claims for damages or injunctive relief other than return of a domain name.  Any judicial determination of a respondent’s appeal will trump the panel’s decision, provided that ICANN receives documentation regarding the lawsuit within ten days after it is notified of the decision.  See UDRP Procedure 4k.

 

 

 

Biography


Professor Amy Schmitz joined the University of Missouri School of Law and the Center for Dispute Resolution as the Elwood L. Thomas Missouri Endowed Professor of Law in 2016. Previously she was a Professor at the University of Colorado School of Law for over 16 years. Prior to teaching, Professor Schmitz practiced law with large law firms in Seattle and Minneapolis, and served as a law clerk for the U. S. Court of Appeals for the 8th Circuit.  Professor Schmitz teaches courses in Contracts, Lawyering, Online Dispute Resolution (ODR), AI, Data Analytics and the Law, Arbitration, International Arbitration, and Consumer Law. She has been heavily involved in ODR teaching and research for a long time and is a Fellow of the National Center for Technology and Dispute Resolution, as well as the Co-Chair of the ABA Technology Committee of the Dispute Resolution Section and the ODR Task Force.  She serves on the Association of American Law Schools Executive Committee on Commercial and Consumer Law, was an External Scientific Fellow of the Max Planck Institute Luxembourg, and is a researcher with the ACT Project exploring AI and ODR. Professor Schmitz has published over 50 articles in law journals and books, and a book, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, with Colin Rule.



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