UDRP Opinon Guide

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UDRP OPINION GUIDE

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The UDRP Opinion Guide summarizes opininion of the UDRP panelists on various issues. In addition to questions about procedures, the Guide looks at elements necessary to establish trademark rights, what activities constitute "bad faith" and the nature of legltimate interests.

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1. What is the UDRP?

The UDRP (Uniform Domain Name Dispute Resolution Policy) was adopted in late 1999 by ICANN (the private authority responsible for the administration of certain Internet technical parameters) to offer an alternative to litigation in local courts to settle complaints by trademark owners about cybersquatting.

The UDRP created its own definition of "bad faith registration and use" of domain names, and identified some situations that would be considered defenses to a trademark complaint (rights and legitimate interests). UDRP proceedings are binding on all domain name holders in .com, .org, .net, .info and .biz as well as [ccTLDS] and can result in the cancellation or transfer of the domain registration to the trademark owner. UDRP cases are decided by individual Panelists who serve one of four resolution service Providers.

Over 7000 UDRP cases have been heard since the Policy was adopted, however many of the decisions are extraordinarily inconsistent. At present, there is no single entitity to which these conflicts can be appealed. Consequently, it is often quite difficult for a mark owner, domain holder or counsel for either of them to determine how the Policy will be applied in any particular case. For more information about the UDRP itself, see "Using ICANN's UDRP" at <http://lweb.law.harvard.edu/udrp/>.

2. What is an Opinion Guide?

An Opinion Guide is modeled on the Restatement of Law materials published by the American Law Institute (ALI). It is attempt to organize and "codify" the opinions issued by courts concerning a particular area of law. Each area is "restated" from the opinions of Panelists into chapters, titles, and sections. However, unlike the Restatements issued by ALI, the UDRP Opinion Guide is not an authoritative resource concerning law. UDRP opinions are not "law." They are not binding on courts and not even binding on other Panelists. The UDRP Opinion Guide is published by the Clinical Program in Cyberlaw at Harvard Law School. It is not affiliated with ALI.

The UDRP Opinion Guide is simply a tool for those who are attempting to understand how the UDRP is being interpreted by Panelists. The only authoritative way to research UDRP opinions is to read the cases themselves, all of which are published online. See ICANN's List of Proceedings at <http://www.icann.org/udrp/proceedings-list.htm>. However, it is presently quite difficult to identify which opinions relate to which facts and issues, simply because the technology hasn't yet been implemented to search them with specificity.

The Berkman Center is grateful to Mr. Simon A. Maeder for sharing his original UDRP research and making it publicly accessible.

3. How do I use this material?

The UDRP Opinion Guide has a Table of Contents followed by the text which will be in chapter, title, and section order. Users should begin by scanning the TOC for appropriate topics. Readers can also use the "Find" capability on their Browsers to locate keywords, or the Guide's Search feature. Each section will state the specific findings of that section, often including comments by the drafters. Some examples of the fact situation in question may be included as well as citations linked to relevant UDRP opinions. We intend that the UDRP Opinion Guide will be a living document, updated with regularity to maintain the information at current levels.

4. Is this legal advice?

Absolutely not. This is simply a report that collects and analyzes the opinions issued by UDRP Panelists. Where the authors venture to intrude their own personal opinion, it is specifically designated as "comment." We do not issue advice or recommendations to individuals concerning their own particular trademark or domain name concerns.

5. Who Is Responsible for the UDRP Guide?

We were fortunate to have an initial draft prepared by Simon A. Maeder. From that core, we reseached and verified the case citations and amplified the analysis. Most of the work was done by Amy Bender, a fantastic HLS student who fortunately finished the bulk of this material before her graduation with the class of '03. Berkman Center Fellow, Megan Kirk, also put a prodigous amount of effort into the Guide.

Diane Cabell, Editor
Director, Clinical Program in Cyberlaw