Domain Arbitration Already Drawing Critics
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Is Michael Robertson, MP3.com CEO, a cybersquatter? Yes, according to a ruling last month by the World Intellectual Property Organization, in one of the first of what may be a series of controversial rulings under ICANN's new Uniform Dispute Resolution Policy.
The panel from WIPO, one of three organizations authorized by ICANN to arbitrate domain name disputes, ruled that Robertson registered the domain name talk-city.com back in 1997 for the purpose of re-directing Internet users to his company's site at MP3.com.
The case was submitted for arbitration by Talk City Inc. which operates a popular virtual community at talkcity.com. As evidence that Robertson registered talk-city.com in bad faith, arbitrators noted that MP3.com's CEO also registered domains including meta-crawler.com, meta-crawler.net, win-zip.com and four-11.com -- all presumably with the intention of grabbing traffic from people who mistype the address of popular Internet sites. The WIPO panel, which was headed by Debevoise & Plimpton partner David H. Bernstein, ordered Feb. 29 that the registration of the domain name talk-city.com be transferred to Talk City Inc.
MP3.com officials did not respond to requests for comment.
The vast majority of disputes are being adjudicated by arbitrators from WIPO, or by the National Arbitration Forum, the Minnesota-based international network of former judges, attorneys, and law professors. A third approved provider, Montreal-based eResolution, has been selected to arbitrate only a handful of the more than 100 pending cases -- despite its stellar list of arbitrators, who include leading Internet scholars and lawyers.
According to Michael Froomkin, a professor of law at the University of Miami and one of the co-founders of eResolution, ICANN erred in setting up the arbitration process by allowing the complainants, which are usually trademark holders trying to get control of a domain, to select which of the three arbitrators to use.
"On paper this process should be fair, but I foresee a serious danger. Since plaintiffs get to choose the arbitration provider, this creates an economic incentive for companies to compete on being pro-plaintiff if they want business," said Froomkin.
Froomkin believes that accredited registrars should select which arbitrator will handle cases involving their domain customers. He has co-authored a letter to ICANN's board of directors last month, asking the organization to take up the issue at its next board meeting. However, the matter did not make it onto the agenda for the ICANN meeting underway now in Cairo.
Ed Anderson, NAF managing director, said Wednesday that "forum shopping" is standard practice among litigators, who seek to determine which court would be most favorable to their claims. But Anderson defended the NAF's decisions.
"All of our arbitrators are independent former judges and are above reproach," said Anderson.
However, if the initial decisions by the WIPO and NAF arbitrators are any indication, the new domain dispute process is tilted toward trademark holders, according to Russ Smith, a domain speculator who holds hundreds of domain registrations. Smith said the WIPO and NAF arbitra