Syracuse University study identifies bias in Internet domain name dispute resolution

November 09, 2000

SYRACUSE -- The international method of resolving disputes over Internet domain names favors trademark holders over those seeking to register an Internet site, according to a study by researchers at Syracuse University's School of Information Studies. The study was released Nov. 9 by the school's Convergence Center.

While the guidelines developed by the Internet Corporation for Assigned Names and Numbers (ICANN) are "robust and fair," both the interpretation of the guidelines and a clause that allows trademark holders to shop around for the most favorable arbitrators has resulted in a system that is biased against Internet domain name registrants, says Milton Mueller, SU professor and director of the Convergence Center.

Mueller's study, "Rough Justice: An Analysis of ICANN's Uniform Dispute Resolution Policy," marks the first time researchers have analyzed the outcomes of ICANN's new arbitration process using data collected from dispute resolution service providers. He will present the findings and recommendations during ICANN's annual meeting Nov. 12 in Los Angeles. The study is forthcoming in The Information Society journal.

ICANN's Uniform Domain Name Dispute Resolution policy, an international system of binding arbitration, gives trademark holders the right to select one of four dispute resolution service providers - Disputes.org/eResolutions of Canada, the World Intellectual Property Organization (WIPO), the National Arbitration Forum in Minneapolis and the CPR Institute, which was recently added to the list and was not included in the study. The policy was adopted in October 1999 and has since been used to settle more than 2,000 domain name disputes, including battles over madonna.com, esquire.com. and hundreds of variations on the names of Yahoo!, AOL, and other companies.

According to the study, the arbitration service providers have statistically significant different records when it comes to resolving the disputes, which are not random outcomes, but result from different ways of interpreting the rules.

Disputes.org/eResolutions of Canada, which rules in favor of domain name registrants 40 percent of the time has attracted only 7 percent of the cases. The World Intellectual Property Organization (WIPO), which rules in favor of trademark holders 82 percent of the time, has arbitrated 61 percent of the cases. Likewise, the Minneapolis-based National Arbitration Forum, which rules in favor of trademark holders 81 percent of the time, has decided 31 percent of the cases.

"Arbitrators from eResolutions of Canada tend to carefully follow the language of the resolution policy," Mueller says, "whereas WIPO panelists tend to adopt a more expansive interpretation that gives trademark holders stronger rights. As arbitrators' records become more widely known, it seems obvious that trademark holders who want to challenge a name will take their cases to the most favorable service providers. The result is a system that is biased against registrants."

Mueller's report calls for allowing the businesses that sell domain name registrations, rather than challengers or domain name registrants, to choose an arbitrator. The report also warns against expanding the scope of the dispute resolution policy, noting the need to develop a stable and secure system of domain name rights.

In response to the report, Barbara Simons, past president of the Association for Computing Machinery and acting chair of the ACM Internet Governance Project, says "it is critical that domain name disputes be resolved in a manner that is fair and equitable. ICANN should revise any policies that unfairly favor trademark interests in domain name disputes."

The study resulted from a database development project undertaken by the Convergence Center to statistically track decisions made under ICANN's Uniform Domain Name Dispute Resolution policy. The project received support from the Association for Computing Machinery's Internet Governance Project, drawing on a grant from the Ford Foundation.

"As the data continues to accumulate, we will be able to perform more sophisticated analyses of the impact of ICANN's dispute resolution policy on cybersquatting and other aspects of the domain name marketplace," Mueller says.
-end-
The study can be downloaded from the Internet at (http://dcc.syr.edu/report.htm).

The Convergence Center (www.digital-convergence.org) is devoted to research and education on practical and theoretical topics related to digital convergence. For more information about the Convergence Center, call Milton Mueller at 315-443-5616 or e-mail: mueller@syr.edu.

Syracuse University

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