تفسیر پانل های WIPO 'از آزمون یکنواخت سه چنگک سیاست حل اختلاف (UDRP)

The Uniform Dispute Resolution Policy (UDRP) is a unique process that resolves domain name disputes effectively and inexpensively. This paper, through an analysis of the UDRP three-prong test, revealed that even though the UDRP affords a great degree of discretion to the WIPO Panels deciding any given case, there is some consistency and predictability inherent in the UDRP process.

It has been widely accepted that a domain name is an important tool and business identifier on the internet. As the number of domain name registrations increases, it is not surprising that the quantity of domain name disputes is also rising. A recent press release by the World Intellectual Property Organization (WIPO) reported that in 2008, 2329 cases of alleged cybersquatting were filed by trademark holders; the figure represented an 8% increase from 2007 [1]. There are generally two ways of resolving domain name disputes. Apart from the lengthy and time-consuming process of court litigation, there also exists a unique dispute resolution mechanism for resolving domain name disputes known as the Uniform Dispute Resolution Policy (UDRP). This paper examines two types of domain name disputes: abusive registration of domain names and disputes between parties with competing rights acting in good faith. Specifically, this paper analyses panels’ interpretation of the UDRP’s three-prong test, which a complainant (normally filed by a trademark owner) must pass in order to succeed. The three qualifications are that (i) the domain name must be identical or confusingly similar to the trademark or service mark, (ii) the domain name holder must not have any rights to or legitimate interest in the domain name and (iii) the domain name must have been registered and used in bad faith. This paper concludes with a proposal to improve the UDRP process.

An analysis of the UDRP’s three-prong test revealed that the UDRP gives a great deal of discretion to the panels as they attempt to make decisions not only on the basis of the statements and documents submitted and in accordance with the UDRP policy and UDRP rules but also in accordance with any rules and principles of law it deems applicable. At the same time, however, it is also clear that there is some consistency and predictability to the UDRP process. Part of the reason is that panels have taken it upon themselves to follow previous UDRP decisions even though the concept of binding precedence is not a tenet of the UDRP. While it is admitted that the UDRP has been successful in addressing disputes between parties with competing rights, it is indeed helpful if an electronic filtering mechanism for pre-screening cases is built within the UDRP procedure. In addition to its main concern of filtering cases so that those ostensibly without bad faith would not proceed to the UDRP, panels would also be relieved from having to decide complex trademark infringement issues that are clearly outside the limited scope of the UDRP.