Arbitration Process in case of Domain Name disputes
The globally operating, domain name registration system is governed by Internet Corporation for Assigned Names and Numbers (ICANN), a voluntary organization that lays down policies for the internet. The governance involves various supporting organizations and advisory committees representing different stakeholder groups. ICANN is an international organization not subjected to any governmental control. It claims to play an important role in ensuring that the Internet remains globally unified, with policies that reflect the collective input from a wide range of global stakeholders.
Under ICANN, there are recognized Registries, and under these registries, various Registrars operate and enable the registration of domain names. The role of the Registry operating within the Internet ecosystem is to maintain a master database of all domain names registered in each top-level domain (TLD) and generate the ‘zone file’ that allows computers to route Internet traffic to and from TLDs anywhere in the world.
One of the most successful online dispute resolution mechanisms (ODR) in the world is the Uniform Domain-Name Dispute-Resolution Policy (UDRP) by ICANN. The UDRP, which was introduced almost contemporaneously with the registration of domain names in 1999, has governed the domain name ecosystem for over 25 years. A person who intends to register a domain name can approach any of the Registrars and, upon paying a fee, obtain registration. At the time of registering a domain name, the Registrant has to agree to be bound by the prevailing dispute resolution policy. The first and foremost policy introduced globally was the UDRP. Every Registrant who registers a Generic top-level domains (gTLDs) has to agree to be bound by the clauses of the UDRP. The UDRP lays down various conditions under which a domain name can be cancelled or transferred, enabling IP owners to exercise their rights over illegally registered domain names or domain names that consist of identical or deceptively similar names. The UDRP provides an online dispute resolution mechanism, which involves the following entities/persons –
(i) The Registrar of the domain name;
(ii) The Registrant of the domain name;
(iii) The Complainant – i.e., person or the entity, who complains against a particular offending domain name;
(iv) The Centre, which administers the UDRP.
When any complaint is filed by the Complainant with an accredited Centre such as WIPO or National Arbitration Forum (NAF), immediately a notice is issued to the concerned Registrar to block and suspend the infringing domain name – stopping any further transfer of the domain name i.e., a status quo order. The notice in the complaint is issued to the Registrant, who is given an opportunity to respond.
In the meantime, a panelist is appointed by the Centre, to decide the domain name dispute. The panel could be a single member panel or a three-member panel depending upon the choice of the Complainant. After pleadings are completed, a decision is rendered by the panel, which is notified by the said Centre. Timelines are prescribed for rendering the award under the UDRP. Normally, the panel would render its determination within 45 days of appointment. A decision notified by a Centre, which is duly accredited by the UDRP, would be binding on the Complainant, the Registrar as also the Registrant.
At the time of filing of the complaint itself, the Complainant has to choose the jurisdictional country/Court for any challenge emanating from a decision rendered by the UDRP panel. Apart from the above four players, any other person whose beneficial interest may be involved in domain name, would not be a relevant party in a UDRP complaint proceeding.
While UDRP proceedings apply to gTLDs, Country Code Top-Level Domains (ccTLDs) are usually governed by domestic dispute resolution policies. For example, in India, .in domain name registrations are managed by NIXI, the Registry duly recognized by ICANN. Any person wishing to register a .in extension domain can approach NIXI or any other Registrar recognized by NIXI and, upon payment of charges and obtain registration. Whenever a .in registration is obtained, the Registrant must agree to be bound by the .IN Domain Name Dispute Resolution Policy (INDRP) Rules of Procedure, which is similar to the UDRP in policy and procedures. Under the INDRP, upon filing a complaint, a notice is issued to the Registrant, and after pleadings are completed, the panelist makes a decision in the matter.
On many occasions, certain companies and individuals may engage a professional entity for registering domain names and hosting websites. However, if such service providers list themselves as the Registrants of the domain names and the beneficial owner is not reflected as the Registrant, no notice is expected to be issued to such a third party, as they would be unknown persons/entities, under the INDRP. Since the Registrant of a domain name is bound by the INDRP, the Registrant is expected to implement a decision issued under the INDRP. The Registrant also has the option of challenging the decision; however, any third party who may claim an interest in the domain name, without being bound by the INDRP, cannot allege that the award has been rendered in violation of the principles of natural justice, as the policy does not require third parties to be heard. The INDRP, just like the UDRP, binds the following three persons/entities:
(i) Registrant
(ii) Registrars
(iii) Complainant, and none else.
Once a decision has been issued by a panel under the INDRP, if the complaint has succeeded, then the Complainant is entitled to seek enforcement of the award as well.