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As policy advice, the Non-commercial constituency submits to the Names Council and the ICANN Board the following ideas for improving the UDRP:
1. ICANN should clarify its policies for granting or withdrawing accreditation from dispute resolution service providers.
2. ICANN needs to modify and standardize certain procedural aspects of the UDRP to preserve fairness. Specifically, we believe that:
* the time given to a respondent to reply to a complaint should be extended
* the method of counting the number of days should be standardized. Certain dispute resolution service providers employ methods of counting the days that are highly unfavorable to respondents living in countries outside that of the service provider's. The large number (approximately one-third of all cases) of respondent defaults can be attributed, in part, to these inequities.
3. ICANN should amend the UDRP procedures to provide domain name holders with some form of a declaratory judgment.
* Domain name holders should be able to initiate a UDRP proceeding, using the dispute resolution service provider of their choice, to obtain a finding that they have a "right and legitimate interest" in a name.
* Prospective complainants would be given a period of time to contest the claim.
We encourage the staff and Board to develop a detailed implementation of this concept. We note that statistical studies of the UDRP have shown that a strong likelihood of "forum shopping" by complainants exists in the application of the UDRP. The option of a declaratory judgment initiated by domain name holders would rectify some of the imbalance.
4. We note with great concern that one US court has decided that a respondent has no right to appeal a decision by aUDRP panel to transfer a name.* If this becomes a precedent, the procedural and substantive aspects of the UDRP need to be substantially revised. The respondent is already at a major disadvantage in UDRP cases:
* The complainant gets to select the decision-making authority
* The respondent has only a few days to prepare a response, whereas a complainant can take as much time as they like to prepare a complaint
* If the complaint is unsuccessful, the complainant can take it to court at any time; indeed, the complainant can pursue both remedies at the same time.
5. We encourage the ICANN community to explore the advantages and disadvantages of having regstrars, rather than complainants, select the dispute resolution provider. Such a selection should be done not on a case-by-case basis, but through contracts that would apply in a non-discriminatory fashion to all names registrered by that registrar.
6. In reference to the second WIPO proceeding, we oppose any extension of the UDRP to new rights in names, such as rights of personality, geographic place, and so on. The domain name system is a method of giving mnemonic names to Internet resources and of mapping information to those names. The process of assigning domain names should not become overly burdened with regulations and legal and political baggage. Such a linkage of domain name assignment to global legal rights is inimical to the Internet's growth, freedom and stability.
* Judge Young (Mass District Court, USA) held that no declaratory judgment was available to the registrant of corinthians.com, including under the ACPA, if the victorious party in the UDRP (the trademark holder) disclaimed any intention to file a trademark lawsuit of his own. There being exactly that disclaimer, he then dismissed the case for failure to state a claim.