The Internet Commerce Association has been an active participant for the past four years in ICANN’s Uniform Rapid Suspension Policy (URS) and Uniform Domain Name Dispute Resolution (UDRP) Working Group. The working group is currently completing its review of the URS. The UDRP principles will be reviewed in a second phase to come.
The URS is a kind of stripped-down UDRP – it costs around $ 375, has a single panelist, the respondent is only allowed 500 words in the response, rather than around 5,000 words allowed in a UDRP response, and decisions are often only a handful. words that barely explain the case. The UDRP itself is a “light of arbitration” as it lacks almost all procedures and has none of the discovery powers available when a case is decided by the courts. The URS is therefore a reduced rate procedure of a reduced rate procedure.
However, the result of the loss of a URS is serious: it leads to the permanent suspension of the domain name until the expiration of the domain name. The domain owner cannot continue to renew the domain name, nor can the domain owner transfer the domain name to a third party. While the penalty for the loss of a URS is often minimized as a simple suspension of an associated web page, the penalty is instead the eventual termination of the registrant’s rights to their domain name.
The URS was originally designed and implemented to address the anticipated eruption of egregious cybersquats on new generic top-level domains (gTLDs). It was considered at the time that the fragile URS process was adequate for this purpose because “the stakes were so low”, that is, it would not affect long-standing records in legacy registers. well established, especially .com. Registrants of domain names in new gTLDs were also warned that the rules would be different for new gTLDs than for old gTLDs. For example, new gTLD registries have had the virtually unlimited ability to change registration prices within a relatively short period of time, in addition to new gTLD domain names submitted to the URS. From the start, new gTLDs were significantly different from old TLDs and were therefore treated differently.
Basically, the main question regarding the URS is whether this is an appropriate procedure to apply to the .com and .net domains. Brand interests are pushing for this, and now Verisign is too. ICANN itself is eager to do this as well. We have seen ICANN repeatedly over the years forcing the URS on registries through bilateral contract renewals, despite the lack of stakeholder consensus. Indeed, it was the imposition of the URS on .org despite the absence of a community agreement that was one of the critical factors that led to the huge public outcry over the renewal of the agreement. .org registry.
From a brand interests perspective, despite its shortcomings, URS is another tool to use and can be useful in tackling phishing and fraudulent websites in particular. A review of the approximately 1,200 URS cases confirms that, for the most part, the URS has been used in clear cases of cybersquatting in new gTLDs. But there are some instances where it is evident that the threshold of “clear and convincing evidence” required to order a stay under the URS has not been met. Panelists sometimes misinterpreted and misapplied this standard, especially when it came to three-letter domain names. In addition, we fear that reporters, who already have to deal with unjustified UDRP complaints, will soon be faced with unjustified complaints under another process, the URS, which comes at an even lower price for complainants and less. protections for declarants.
The question is whether a relatively inadequate and already poorly applied procedure in certain cases should be imposed on registrants of .com and .net domain names. Brand interests argue that this is a âproven and testedâ procedure with excellent results and will be an âeffective toolâ to quickly shut down phishing and fraud websites in .com and .net. Yet even many who support the imposition of the URS on .com and .net admit that the URS is flawed, unsuitable for its task, and that many intellectual property lawyers do not use the URS because it is ‘they don’t see it. as an effective solution to the problem of DNS abuse.
Although the URS is faster than the UDRP, it is still relatively slow, requiring 20 days or more to shut down a fraudulent or phishing website. Although it provides a short-term solution, the problem domain name will eventually expire and become available for re-registration. Most importantly, the URS focuses on trademark infringing domain names when many websites involved in phishing, fraud, or other forms of DNS abuse do not use a domain name that is itself. same is similar to the brand it is targeting. The URS is therefore a poorly designed tool to combat DNS abuse and offers limited benefits.
However, imposing the URS on .com and .net could have serious consequences. Even though ICANN staff and interested parties in the intellectual property lobby wish to deny the reality, the .com namespace is not just another gTLD. It is by far the largest gTLD, with over 147 million registered domain names and is home to the commercial Internet, making it by far the most valuable gTLD under ICANN’s responsibility.
The URS was imposed on .org over a year ago, due to widespread community opposition. The lack of usefulness of the URS is visible in the fact that despite over 10 million registered .org domain names, there have only been five URS complaints against the .org domain names. last year. However, the record is not good. Of these five cases, two were unfounded, one was questionable, and only two cases in a universe of 10 million domain names met the URS objective. This is not strong proof that URS is needed in .com. And indeed, adding URS to .org may have done more harm than good, as 40% of URS complaints filed (albeit in a small sample) were unfounded complaints targeting .org registrants. innocent people who had to take unnecessary trouble to defend themselves. to protect their domains from the harassment of such unfounded complaints.
We also have the example of the UDRP to continue, as the UDRP applies to all gTLDs under the mandate of ICANN. Since 2018, there have been 99 cases where a UDRP complainant has been convicted of abusing the UDRP by abusing the UDRP for an attempted reverse domain name hijacking (RDNH). In many of these RDNH cases, the complainant targeted the disputed domain name because it was valuable and desirable, not because it infringed the rights of the complainant. The domain names targeted in these UDRP disputes where RDNH has been found include Sante.com, Karma.com, TheSun.com, CWJ.com, GEN.com, Airy.com, AVK.com, among others. These are all inherently valuable domain names.
The 99 instances of RDNH since 2018 involved three .org domain names, two .net domain names, 94 .com domain names, and no new gTLD domain names. Claiming that the URS works well on new gTLD domain names tells us nothing about the possibility and likelihood of misuse of the URS if it is ever applied to the 147 million .com domain names that represent the vast majority of the value of all domain names in DNS. As most of the business activity takes place on .com, URS could be used to harass complaint websites, fan websites, review websites, comparison websites and even inactive websites, by seeking to suspend these websites by making unsubstantiated allegations that the Complainant’s trademark is infringed by the associated domain name.
Ultimately, the URS has proven to be unpopular with complainants and registrants, and there is a real question whether it should exist for new gTLDs, let alone old TLDs. This is a summary procedure that does not adequately protect reporters and is ripe for misuse. And for the interests of brands, not only does it not result in a transfer, but it is not much faster than UDRP and does not really effectively address serious phishing and website counterfeiting issues that may require a more targeted and efficient procedure. It would be far better to get rid of the URS altogether and find a better solution for blatant abusive registrations, while protecting registrants and domain name investors in particular from abusive complaints.
The working group needs consensus for a modification of the URS to become a recommendation of the working group. The ICA has made many proposals to fill the gaps in the URS with the aim of making it more robust and fairer.
This involved proposing certain modifications to the URS and also opposing certain modifications to the URS. The ICA has managed to see some improvements to the URS to one extent or another, however, the ICA has also, unfortunately, found strong opposition to many of the suggested improvements, which has the effect of diluting the improvements. or to maintain the URS as a primarily one-sided tool favoring brand owners without providing adequate protections for domain name holders.
We are particularly concerned that Verisign has come out in favor of the URS. In our opinion, Verisign should stand up for its own clients and oppose the URS as being a lackluster and inefficient process, or at least leave this matter to others such as registrants and trademark interests, rather than to come out in favor of one side for this problem. Verisign also hinted that if he fails to enforce the URS through the working group, he can try to get what he wants directly with ICANN staff by renegotiating his contract. As we saw with the .org fiasco, such an attempt to bypass the multistakeholder process would be misguided and lead to further erosion of ICANN’s legitimacy and credibility.
The ICA is committed to ensuring fairness for all stakeholders and looks forward to exploring new and better opportunities to improve domain name dispute resolution with respect to the UDRP in Phase 2. of the task force report, which will likely start in the new year.