[Gnso-epdp-team] IPC on UDRP in Initial Report (Part 4, section o))

King, Brian Brian.King at markmonitor.com
Wed Nov 14 19:40:30 UTC 2018

Hi Marika,

The IPC would like to note its support of the BC's suggestion that pre-filing disclosure "be added to the processing activities for the purpose of coordinating, operationalizing and facilitating policies for resolution of disputes regarding or relating to the registration of domain names (as opposed to the use of such domain names), namely, the UDRP, URS, PDDRP, RRDRP and future-developed domain name registration-related dispute procedures for which it is established that the processing of personal data is necessary."

We do not believe that this would necessarily require a change to the UDRP for a number of reasons, including that 4.a. of the UDRP distinguishes between the assertion that the three UDRP prongs are met, and the subsequent administrative proceeding when the prongs are proved. As one example, this distinction provides opportunity for policy development (e.g. controls and requirements to prevent fishing expeditions) that support pre-filing, post-assertion disclosure in limited circumstances.

For completeness, speaking to the point currently included in the Initial Report draft, GDPR redaction is distinguishable from privacy/proxy registrations as the latter has been and can be considered non-dispositive evidence of the bad faith UDRP prong, where the former has not, to my knowledge.

To Alan Woods' sage point in his recent note, the assessment/reasoning for this, in addition to the above-mentioned and BC-mentioned prejudice to brand owners in the UDRP since May 25, is that the lack of pre-filing WHOIS data availability has made the UDRP less effective as evidenced by a 10% decrease in the number of domains per UDRP case filed at WIPO since May 25, and a 21% decrease year-over-year based on my last data pull. Further, 2/3 of the UDRP prongs involve the registrant's identity, making it extremely difficult and in some cases impossible to draft a good-faith UDRP filing without pre-filing disclosure.

Thank you.

Brian J. King
Director of Internet Policy & Industry Affairs
MarkMonitor / Part of Clarivate Analytics
Phone: +1 (443) 761-3726
brian.king at markmonitor.com<mailto:brian.king at markmonitor.com>

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