The National Arbitration Forum’s (NAF) revised Uniform Domain Name Dispute Resolution Policy (UDRP) Supplemental Rules became effective on January 1 2006. While most of the revisions do not have a material effect on the filing of complaints under the UDRP (eg, increased filing fees and the limitation for each party to a single additional submission), the new definitions section has a significant impact on a fairly common type of domain dispute.
Under UDRP Rule 1, the "respondent" is defined as the "holder of a domain name registration against which a complaint is initiated". NAF’s Supplemental Rule 1(d) now defines the respondent further. "The holder of a domain name registration", as used in UDRP Rule 1, (i) means the single person or entity listed in the WHOIS registration information at the time of the filing of the complaint with NAF, and (ii) once the registrar has verified registration, is limited to the single person or entity as verified by the registrar.
In practice, determining the "holder of the domain name registration" requires a simple search of the WHOIS database for the subject domain name. The person or entity listed as the registrant is the "holder" and therefore the respondent.
A problem arises from the fact that domain name registrants often supply the WHOIS database with inaccurate and unreliable contact information. In fact, a number of decisions under the UDRP have established that serial cybersquatters often register infringing domain names under various aliases. The World Intellectual Property Organization (WIPO) panelist in Adobe Systems Inc v Domain OZ held for the first time that the evidence established that Domain OZ, the listed registrant of the
Before the new rules, NAF arbitrators followed this line of cases as well. For instance, in Yahoo! v Vorot the panel recognized that the complainant would be faced with an "unjustifiable economic burden" if it was required to bring 10 separate administrative proceedings, and that "it would be a burden on the administrative process to require it to duplicate its effort in the same case". Accordingly, the panel accepted as true that the 10 domain name registrants were, in fact, one respondent. Other similar cases include Yahoo! v Zviely, International PADI Inc v Smith and DC Comics v Sensible Internet Retail Inc.
NAF’s new rule prevents the arbitrator from determining whether the complainant has sufficiently proved that two different listings in the WHOIS database are indeed one and the same. Paragraph 4(f) of the UDRP empowers the arbitrator to consolidate disputes in the event of multiple disputes between parties. However, there is little incentive to consolidate multiple filings because NAF’s Supplemental Rule 17(c) states that all fees paid to NAF are non-refundable.
This new rule will not change the many domain disputes filed under the UDRP that involve a single domain name registrant. Nevertheless, the registration of multiple domain names under different aliases is a fairly common circumstance. The new definition of "respondent" creates a significant distinction between NAF and the other administrators of disputes under the UDRP. If a dispute involves multiple infringing domain names registered to one entity under various aliases, a complainant seeking to resolve the dispute in a cost-effective manner must consider NAF’s new Supplemental Rules and may instead consider WIPO as an alternative.
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