UDRP Panelists – Stop Hiding and Stand Up for your Beliefs

It can be frustrating reading UDRP decisions where there is a difference of opinion among the panelists if one wants to know what each of the panelists believes.  The decisions often refuse to name names.  The decision will say that a majority held one view, and that a minority held a different view.  But the decision won’t say which panelists held which views.

Why does this matter?  Because when a respondent or complainant selects its candidates for a three-member panel it is important to know each panelist’s views on the issues that are raised in the instant UDRP.   When UDRP decisions fail to name names, readers of the decision know that there was a difference of opinion but they don’t know which panelists held which position.  This deprives the reader of valuable information.  The UDRP empowers each party to select candidates for a three-member panel so why do panelists in writing their decisions make it harder to fulfill that function by making the views of its members anonymous.

Is it to create the illusion that the UDRP is more uniform than it is?  Do the panelists wish to pretend that their differences are minor and only limited to that particular case, so that it doesn’t matter for any future cases which panelist held which view?  Unfortunately the reality is that the UDRP is anything but uniform and the outcome of many cases depends entirely on which panelists are selected for the panel.  That is why having as much clarity as possible as to the panelists’ views is important.

In the recently decided UDRP on consuela.com, which should have been a slam-dunk Reverse Domain Name Hijacking decision as the Complainant knowingly filed the UDRP despite being well aware that the domain was registered years before the Complainant was formed,  the decision notes that “a minority of the Panel is of the view that reverse domain name hijacking should not be found without evidence of some knowing effort to seize someone else’s intellectual property.”

Who is the panelist who held this view?  Apparently it is a secret.  But it would be very important for a respondent in a future case when tasked with selecting panelists for a case with similar facts to know which of the panelists in the Consuela.com case would not have found RDNH.

In the UDRP on the Marchex domain Swash.com (that resulted in a finding of RDNH), two of the panelists held that Marchex did not have a legitimate interest in the domain.  Yet one of the panelists held that Marchex did have a legitimate interest in swash.com.

A minority of the Panel does not agree with the Panel majority’s finding on the Respondent’s “Rights or Legitimate Interests”… The Respondent has been making bona fide commercial use of the disputed domain name for 8 years or more and … in the view of the minority Panelist a legitimate owner of a domain name, which has been making continuous bona fide commercial use of the domain name over such an extensive period has a legitimate interest in respect of it.

This difference in views is critical to any investor in generic domains.  I would like to know which of the three panelists found that Marchex had a legitimate interest in swash.com, as I would be inclined to select that panelist for any future disputes with similar facts.  But once again, we are left to guess because the identity of the mystery minority panelist is not revealed.

In CarnivalCasino.com, “A minority of the Panel believes that, in the context of this proceeding, Respondent placed Complainant’s trademark rights (at least in the U.S.) in sufficient dispute. ”  Unfortunately once again the decision does not disclose which one of the panelists held this belief.

This habit of refusing to identity which panelists hold particular views is found in case after case.  Hiding behind a cloak of anonymity is bad jurisprudence and adds to the unpredictability of the UDRP process.

Selecting a panelist shouldn’t be a game of three-card monte.  The decisions should offer transparency when there are differing views as to which panelists hold which views.

So to the panelists who are writing these decisions – stop being coy and start naming names.