This policy applies to all generic top-level domains, such as .com, .net, .org, etc., in addition to some country code top-level domains. This was initially created due to “The Trademark Dilemma,” which describes the issue of trademarks being used as domain names without owning the trademark or obtaining the trademark owner’s consent. The main issue with this is consumers being misled, which can lead to fraud and deceiving consumers.
Launched on December 1, 1999, the UDRP consists of a three-stage test. This test sets out that the complainant (the person bringing the claim to the forum) must establish the following:
1. The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; 2. The registrant (the person attempting to register the domain name) does not have any rights or legitimate interest in the domain name; and 3. The domain name has been registered and the domain name is being used in “bad faith.”
In a UDRP proceeding, a panel considers various non-exclusive factors in order to determine “bad faith.” These include whether the registrant registered the domain name for the primary purpose of selling, renting, or transferring the domain name registration to the trademark holder/complainant; whether the registrant registered the domain name to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name; whether the registrant has a history of this pattern of conduct; whether the registrant registered the mark in order to disrupt a competitors’ business; and/or whether the registrant has intentionally attempted to attract consumers by creating a likelihood of confusion. This policy was set in place in order to create a streamlined process to resolve disputes as such.
This policy is agreed to by all domain name registrants when they “represent and warrant” that registering the name will not infringe upon any third parties’ rights and that the registrant will submit themselves to an arbitration-like proceeding if a claim by a third party is asserted. In order to invoke the policy, the trademark owner should either “file a complaint in a court of proper jurisdiction against the domain-name holder . . . or . . . submit a complaint to an approved dispute-resolution service provider.”
The providers that are approved dispute-resolution service providers include the Arab Center for Domain Name Dispute Resolution (ACDR), the Asian Domain Name Dispute Resolution Centre, the Canadian International Internet Dispute Resolution Centre (CIIDRC), the Czech Arbitration Court Arbitration Center for Internet Disputes, the National Arbitration Forum, and the World Intellectual Property Organization (WIPO). In 2010, ICANN issued a memo in order to issue uniformity of process throughout the approved service providers.
The remedies for a complainant are limited to requiring the cancellation of the registrant’s domain name or requiring the transfer of the domain name registration to the complainant.