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Improving UDRP for small businesses and individuals against Domain Grabbers

  • To: comments-rpm-prelim-issue-09oct15@xxxxxxxxx
  • Subject: Improving UDRP for small businesses and individuals against Domain Grabbers
  • From: Samuel Kutter <kutter@xxxxxxxxxx>
  • Date: Thu, 19 Nov 2015 14:43:01 +0100

Dear Sir / Madam,

I am commenting as an independent small business founder facing the
“blackmail” approach of Domain Grabbers. They do not actively use their
registered domain, and their sole business model is to sell the domains
at an elevated price that is not justified by actual costs. We certainly
agree that the behaviour of Domain Grabbers is not in the interest of
the community using the internet (who - today - is “everybody”). I have
3 suggestions:

1) For founders and small businesses, the cost of an UDRP at an
arbitration court are high. First, these fees should be lowered and
capped, in particular for simple cases where individuals with limited
resources have a legitimate cause for an UDRP. As ICANN officially
accredits UDPR arbitration courts, they should work towards and impose
low fees, in particular for simple, individual cases.

2) Moreover, the fundamental problem with arbitration procedures is that
the fees (that are justified to some extend to cover court expenses)
determine a “price point” for the Domain Grabbers: they will sell a
domain at the cost (or slightly below) you are going to face if you take
them to an UDRP. This is rational, economical behaviour.

By adjusting the fees, one cannot solve this problem. Let us use a
crucial distinction between bad and good faith parties to end this
unfair business model: In contrast to Domain Grabbers, small business
owners and individuals (with a justified claim) have more commitment and
time to prove their cause. The business model of Domain Grabbers relies
on easy and automated processing and bulk quantities of domains.

Let us use this “asymmetry of resources” in favour of improving the
UDRP, hence, I suggest that the UDRP arbitration process is changed in
the following way:

i. Before the actual UDRP arbitration process starts, there is a
“registration phase”. The claimant must pay a low fee (50 Euro) to open
a case against a respondent. Both parties are required to hand in proofs
that they deserve the use of the domain name (according to the existing
ICANN policies). The parties are asked to hand in the proofs, e. g.
trademark registrations, business or company registrations, identity
proofs, proof of business activity on similar websites etc.

ii. If either party fail to submit the necessary documents or submits
generic documents (generic text not giving actual, concrete details
about the concerned domain name; automated text), then the other party
automatically wins. – Furthermore, the arbitration court should insist
that the documents should be provided in paper form. This simple, yet a
little inconvenient formal requirement would certainly kill the business
model of domain grabbers as they rely on highly automated systems that
can process large quantities of domains and procedures. The formal
requirement to compile, print and sign a few “real papers” will
neutralize them quickly and nicely.

iii. If the documentation is handed in by both parties, the UDRP
arbitration shall proceed as ever: The complainant shall pay the
remainder of the necessary fee and the panel is appointed. As already
mentioned in 1), the fee should be lowered for simple cases.

The initial “registration fee” of 50 Euro and the necessary paper work
will keep away “Reverse Domain Name Hijacker” and similar unjustified,
harassing complaints.

3) ICANN and/or the arbitration courts should hold public blacklist of
notorious Domain Grabbers. Any case against this group is going through
a simplified procedure with lower fees. Additionally, court fees might
be invoiced from companies on this list, and/or other domain names that
are held by members of this group might be seized as forfeit / deposit.

I am looking forward to seeing this recommendation discussed, and may
be, we see it or modifications of it implemented in the future.

Samuel Kutter

München, Germany, samuel.kutter  AT  hangbird.net, kutter AT cantab.net

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