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UDRP Panelists – Stop Hiding and Stand Up for your Beliefs

2013 August 9
by Nat

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, 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 case would not have found RDNH.

In the UDRP on the Marchex domain (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

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, 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, “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.


6 Responses leave one →
  1. August 10, 2013

    The only way to know who said what is to have a dissent but it is not very hard to find out who said what.

    My bets: Tony Willoughby Hon. Carolyn Johnson David Sorkin

    • Nat Cohen permalink*
      August 12, 2013


      Thanks for the comment. You are probably right about which panelists held the minority view in the different cases. These are all panelists who have decided many cases and their views are well known. Yet even so, we are left to guess and we could be wrong. In cases where the panelists are new, we would have no idea who held different views unless the panelists are identified.

      I think my point still holds that failing to identify which panelists hold which views is a disservice to the Internet community and needlessly withholds useful information to those involved in UDRP disputes.

      I appreciate your taking the time to comment.


  2. Pat Snippley permalink
    August 19, 2013

    Not wanting to exactly hijack this thread, but felt it worth raising a related issue that I’ve looked at recently…

    Zak Moskovitch compiled some stats on panelists in 2010, highlighting the concentration of cases in a few hands. He published an update last year, here:

    That piece also looked at the record of some panelists to favour respondents vs. complainants. On the surface it really seems that not only forum shopping is an issue, but also that panelist selection has a big effect in the outcome of cases.

    Unfortunately though, looking at those stats as a domain investor, they suffer from the common inadequacy of most sets of stats on UDRP decisions…inadequate from a domain investor’s point-of-view at least. And that is, after briefly mentioning the high incidence of respondent default, they fail to actually attempt to account for it.

    For example, around 10% is the figure usually cited as the headline ‘win rate’ for respondents at UDRP, which is taken by many domain investors to be a clear indication of bias, either the process’ bias toward complainants (or the arbitration forums’ bias, or both).

    However, using the NAF’s online search engine with a few text-string search variations, I came up with the following stats, which suggest that the chances for those respondents actually willing and able to file a response is more than DOUBLE that rate:

    NAF (inception to Aug 2013)
    udrp cases 13106
    resp. Defaults 7802
    claim denied given default 207
    claim denied o/all 1369
    non-default cases o/all 5304
    claim denied given non-default 1162

    2.7% respondent win rate given default
    10.4% respondent win rate o/all
    21.9% respondent win rate given non-default

    Now, what I would find really useful, to inform my eventual panelist decision were I to face UDRP as a respondent, is to see these stats PER PANELIST…I had a brief look at’s stats, which are really dated now but nonetheless do show a more useful breakdown along the lines I am talking about. And there is ample evidence there that the headline “respondent win rate” for a particular panelist does not properly tell the story that the respondent facing a UDRP panel nomination decision needs to make an informed choice. Why? for the simple reason that particular panelists tend to get large numbers of respondent default cases, which really skewed their figures.

    So, anyone up to the task? Or better yet, has someone already done the numbers somewhere and I missed it 🙂

    cheers and sorry again if this appears OT…

    • Nat permalink*
      August 23, 2013


      Thanks very much for your thoughtful and well researched response.

      You raise a good point that it is important to distinguish the win rate when a Respondent defaults from the win rate when they respond.

      I was curious about this as well, and wrote a post on the subject a couple of years ago:

      I analyzed all the WIPO cases from August 2011 and found that Respondents win half the cases when they respond, and 79% of the cases when the domain owner is represented by an attorney.

      These stats are based on a small sample, but it does show that when a respondent shows up with strong arguments that the respondent has a good chance of prevailing.

      You also make a good point that win/loss stats alone aren’t enough to evaluate a panelist from the Respondent’s point of view, as the preponderance of default cases will skew the results.

      The key issue for domain investors is how a panelist looks at the business of domain investing. Does the panelist see investing in generic domains for resale as legitimate? Or does the panel see domain investing as simply buying domains that trademark holders will want and then holding the domains hostage unless the trademark holders pay an exorbitant price to purchase a domain that is primarily valuable because of the goodwill associated with the trademark?

      (The anti-domainer perspective is misguided for many reasons, one of which is that plenty of generic domains sell for high prices to start-ups and established companies seeking to launch a new brand or service, where the buyer has no trademark rights at all to the domain. In these cases the domain’s value comes entirely from the positive connotations associated with the generic meaning of the domain.)

      As a domainer, you obviously want a panelist who views domaining as legitimate, not one who is hostile to domainers.

      What’s the best way to determine a panelist’s views towards domainers, and whether they are more positive or more hostile towards domainers than a typical panelist? When the panelists are on a three-member panel and there is a difference of opinion between the panelists.

      These differences in views can make the difference as to whether a domain owner prevails.

      That is why refusing to identity the panelists who hold conflicting opinions is so unhelpful to participants in the UDRP process who are required to select panelists for a three-member panel.

      While the outcome of a particular UDRP decision is the most critical matter to those parties in the dispute, to anyone else reading the decision the most critical information is which panelists held which views that led to the decision. Concealing this information is a disservice to all who participate in the UDRP.

      I’d welcome your further thoughts and comments.



  3. August 29, 2013

    Hi Nat

    Yes indeed it would surely be a “nice to have” (full disclosure on which panelists thought what in three-member panel decisions). Failing that, I would proffer the following research method to zero-in on panelists who might be “not anti-domaining per se” (let’s call these PROs):

    1) isolate domainer cases, with generic names as domainers
    would typically conceive it (non-default cases)

    2) list all the panellists from 1); start with a neutral score for each

    3) emphatically negatively score those who have proven dogmatically anti-domainer in single member panel cases (let’s call these ANTIs)

    4) emphatically positively score those who have proven PROs in single member panel cases

    5) “triangulate” amongst those three-member panel cases that have involved exactly ONE of our known PROs or ANTIs, ie. in cases with only one known PRO or ANTI, if the transfer was denied, with one member dissenting, then we can assume with good probability that the dissenter was the known ANTI, so uptick the other two’s scores; if granted with one member dissenting, then the probability is high that the dissenter was the known PRO, so downtick the other two’s scores…etc. this may involve upticking and downticking the same individual as we make our way through; so be it.

    6) repeat for unanimous decisions and tweak ratings on all panellists – downwards for transfers, upwards for denied complaints (using the original emphatic lists from points 3/4, not the adjusted list from point 5, to avoid reinforcement bias)

    7) lastly look at three-member panel decisions where TWO of our known PROs/ANTIs were involved (again using the original list) and make the necessary tweaks

    I’m not the maths genius, so I’d leave it to others to work out a robust scoring scale, and the appropriate degree of tweaking/weighting on each point. (Intuitively i would say a higher degree of tweaking was warranted in these “one dissenter” cases, as they are the most revealing both of a panelist’s views and his/her conviction in stating them.) But what I’m driving at is that an exercise like this, done objectively, should yield a useful kind of “ranking”. A ranking that covers not only the obvious dogmatists that are named ad-hoc from time-to-time in domain lawyers’ blogposts, but also the in-betweeners. Such a list might be helpful to domainers facing UDRP complaints. It would be a bit of work to be sure…esp. if done over a sample set of sufficient length (in time) and breadth (covering all the involved panellists) to ensure accuracy and usefulness, but failing ICANN’s mandating the kind of full-transparency that you are arguing for Nat, it might be the next-best thing…then again, this kind of list might form valuable IP for a domain lawyer/advisor, and so not likely to be openly shared (could this be an intern’s project?). On reflection, this might not be such a bad thing though, as it is of course information that could be useful to RDNHers equally!

    Thanks again for the thought-provoking articles Nat.


    • Nat permalink*
      October 4, 2013

      Hi Pat,

      A table showing how panelists decided in RDNH cases over the past five years (and many older ones) is now available at – This is a step in the direction you suggest. There are several split decisions listed, both in instances where the majority found RDNH and in instances where the majority did not make a RDNH finding. From the results you can see that some panelists are more inclined to find RDNH than others.

      Similar research could be done on all split decision cases. As you suggest, if such research is done certain panelists will clearly demonstrate either a more favorable or a more hostile view towards domain investing than the norm.


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