A New Perspective on WIPO’s Panelists Domain Names Decisions
The research paper builds on earlier studies that examine the UDRP system, and assess the flaws and bias within that system. It outlines first the problem with domain name disputes, and analyzes the different regulatory models for regulation of domain names and cyberspace as envisaged by professor Lawrence Lessig.
It examines to what extent the background of the panels, and their knowledge of a particular language might influence the outcome of the decision in WIPO domain name decisions. The paper criticizes the approach taken by professors Geist and Mueller, and mentions that it incorrect to assume that there is bias in the UDRP system based on the numbers of transfer rate decisions issued in favor of one party on the account of the other. The general assumption that the UDRP system is not working effectively without saying what is wrong with the decisions themselves is also flawed, it is a very general assumption that undermine the whole system without telling us where it goes wrong, and how it can be improved in the future. Furthermore, the approach leads to incorrect results and unsound conclusions.
The paper takes a different route in two respects. It examines the content of each WIPO domain decision carefully, and focuses on cyber-smearing and suck cases particularly. The reasons for doing that is two fold. First, because WIPO is the number one dispute resolution provider among all providers in terms of the number of disputes handled since its approval by ICANN in December 1999. Second, cyber –smearing and suck cases are an interesting category of name conflicts to study since they may give panels an ample opportunity to interpret the UDRP, as they perceive. This may lead to criticism and questioning of the fairness of the system.
The paper specifies certain problems with cyber-smearing cases that were decided before WIPO dispute resolution provider. Particularly, there is evidence that there is a serious flaw with paragraph 15 (a) of the UDRP rules that gives the panels the power to refer to “any rules and principle of law that is deems applicable” in their interpretation of the policy, and supporting their decision. WIPO cyber-smearing cases lead us to infer that the background of the panel influences their decisions and results in reaching inconsistent unfair outcomes. The paper also outlines other serious problems in the decisions, and provides some suggestions for reform.
The full paper is available here.