Recent Case Notes & Commentary

PROCEDURAL DEFICIENCIES IN 358 DOMAIN NAME ARBITRATIONS

The Hon Neil Brown QC


This is a study of 358[1] cases that have been arbitrated under the Uniform Domain Name Dispute Resolution Policy (the UDRP). The study is designed with several objectives in view.

They are:


1. To draw attention to the deficiencies process under the UDRP. This process requires the provider of the arbitration services in any individual case to :

(i) identify procedural or administrative deficiencies in the drawing up of Complaints;

(ii) bring them to the notice of the Complainant (or their lawyers);

(iii) require them to be rectified;

(iv) ensure the deficiencies have been rectified before the case is allowed to proceed.


2. To concentrate of the Rules under the UDRP and other administrative requirements which are often overlooked in place of the admittedly substantive and more interesting issues that arise on the merits of these proceedings.


3. To help parties and their legal advisers to comply with the Rules and avoid the inevitable delays and embarrassment that comes from non-compliance with the Rules.


HOW THE DEFICENCIES PROCESS WORKS

The UDRP and the Rules made under it, include a unique procedure under which the Complainant or its attorney files the Complaint with the provider of the dispute resolution it has chosen to manage the proceeding. The Complainant has a choice of which provider it will use. It is not obliged to use any provider in particular, but may use any one of the 5 providers that have been accredited by ICANN[2].


The provider of choice will have the task of notifying the Respondent ( the person or company in whose name the domain name is registered, i.e. the domain name holder), that the claim for the domain name is being made against it and delivering with that notice a copy of the Complaint together with the evidence set out in the annexes to the Complaint.

But before doing that, the provider will want to make sure that the Complaint is in order and that it is ready to proceed. This is not a judgment on the merits of the case; it is simply the beginning of the case and it is designed to ensure that the case is procedurally in order before it goes forward to an arbitrator or panelist to make the judgment about the case on its merits. So, before it sends the Complaint off to the Respondent, the provider will examine it to see if it is in order.


I can assure you that the providers take this function seriously and subject every complaint to a thorough examination. I can also say that the providers are right when they draw attention to deficiencies.


This role of the provider to see if there are administrative deficiencies in the claim being filed is set out in Rule 4 of the Rules made under the ICANN policy (“the Rules”). The precise terms of the Rule are as follows:


Rule 4 (d):

“(d) If the Provider finds the complaint to be administratively deficient, it shall promptly notify the Complainant and the Respondent of the nature of the deficiencies identified. The Complainant shall have five (5) calendar days within which to correct any such deficiencies, after which the administrative proceeding will be deemed withdrawn without prejudice to submission of a different complaint by Complainant.”


Notice that Responses are not subject to the deficiencies process.


WHAT ARE DEFICIENCIES?

Most deficiencies will be statements in the Complaint that are inconsistent with the Policy and the Rules. It is conceivable that a deficiency could exist that is not a breach of the Policy or the Rules, but some other deficiency. But it would not be a deficiency if the provider looked over the Complaint and concluded that the chances of the Complainant winning were slim; that is a matter on the merits and the substance of the case which is not what the deficiencies procedure is about. What is clear is that deficiencies relate to procedures only.

What the provider is looking for, then, is whether the Complainant has complied with the Policy, which sets out the substantive domain name law and also with the Rules, which deal with procedural matters.


WHAT HAPPENS WHEN THE PROVIDER FINDS AN ADMINISTRATIVE DEFICIENCY ?

If the provider finds that the complaint is “administratively deficient”, it notifies the Complainant and the Respondent of the deficiencies it has found. It gives the Complainant 5 calendar days to correct the deficiencies. If the Complainant does not rectify the deficiencies, the Complaint is deemed to be withdrawn, although the Complainant may file a new or “different” complaint.

It seems from the way the Rules are drawn that: