By Doug Isenberg
Although the Rules came as somewhat of a surprise (I had never heard anyone mention them previously, and ICANN’s announcement says nothing about the process that led to their creation), they are relatively straightforward. Still, they contain a few interesting insights into how the URS process will work. For example, the Rules state the following:
“The Complaint shall be submitted in English.” (Rule 9(a))
Previously, the only reference to a language requirement was in the URS itself (now referred to as the “Procedure”), which said that the “Notice of Complaint” (sent by the URS service provider) had to be in English and “the predominant language used in the registrant’s country or territory.” The Procedure itself was (and is) silent on the language required for the actual Complaint, so the English mandate in the Rules is welcome news for a number of reasons. First, it provides clarity. Second, it is consistent with other ICANN language preferences. And third, although it may pose a challenge for non-English-speaking Complainants, it eliminates the language games played by some cybersquatters who have frustrated UDRP proceedings as the result of a different requirement under the UDRP Rules (which refer to “the language of the Registration Agreement”).
URS service providers can set “word and page limits” (Rules, definition of “Supplemental Rules”)
The Procedure makes clear that Complaints may contain “up to 500 words of explanatory free form text” and Responses “shall be be no longer than 2,500 words.” But, by giving the dispute providers (the first of which is the National Arbitration Forum) the ability to set word limits in their supplemental rules, it will be interesting to see whether these parameters are changed. While any supplemental rules must “not be inconsistent” with the Procedure and Rules themselves, one implication of this rule is that service providers could further limit the size of complaints and responses — something that would not seem unreasonable given the expedited nature and low fees associated with the URS.
“URS Complaints may only be filed against domain names registered in a New gTLD.” (Rule 3(f))
Although this rule seems obvious, it makes clear that the URS will not apply to any of the existing 246 million domain names such as .com or any other existing top-level domain. Therefore, even should the URS become a popular tool for trademark owners, the UDRP will remain an essential form of domain name dispute resolution for many years to come, as I have said before.
Dispute providers and their examiners will have discretion over how to treat privacy services
Specifically, the Rules state:
- “The Provider’s Supplemental Rules will specify how the Respondent shall be identified in cases where the domain name is registered with a privacy/proxy service.” (Rule 3(h))
- “If one or more domain names are registered with a privacy or proxy service, or the nominal registrant changes after the complaint is filed, it shall be the sole discretion of the Examiner to determine if the respondents are sufficiently related and to dismiss the Complaint with respect to any unrelated domain names.” (Rule 8(d))
On the one hand, it’s reassuring to know that the URS Rules actually contemplate the use of privacy and proxy services, something that neither the UDRP Policy nor UDRP Rules directly addresses. On the other hand, the absence of any guidance in the URS Rules about how to treat privacy and proxy services means parties will be left wondering how this issue will be resolved — at least until Supplemental Rules or a body of case law has developed (as it has with the UDRP).
“[T]he Examiner may not request further statements or documents from either of the Parties.” (Rule 10(h))
This Rule makes sense, given the “rapid” nature of the URS, but it is a clear difference from the UDRP, which gives a panelist authority to conduct disputes “in such manner as it considers appropriate,” occasionally resulting in administrative orders requesting additional information from the parties.
“There shall be no in-person hearings…” (Rule 11)
This rule also makes sense in light of how all domain dispute policies are designed to operate. However, it, too, is different than the UDRP, which expressly allows for in-person hearings if “the Panel determines, in its sole discretion and as an exceptional matter, that such a hearing is necessary for deciding the complaint.” (To my knowledge, no panel has made such a determination since the UDRP went into effect.)