Arbitration Forum - WIPO domain disputes and more

[domains]

http://www.arb-forum.com/

The Arbitration Forum was chosen by ICANN to resolve domain cases based on the USDRP and the law.

What interesting is that in addition to domain disputes, they also offer Arbitration and Mediation directly to consumers. They post prices for this service and are members of the Better Business Bureau.

Check it out and see if I am reading that right. Has anyone heard of cases where arbitration or mediation at the Arbitration Forum were used by private parties?

[pljones]

domains,

The National Arbitration Forum was approved by ICANN as the second accredited dispute resolution provider on December 23, 1999. NAF competes with WIPO to resolve intellectual property and other disputes, it is not run by WIPO or ICANN. It is based in Minnesota, and uses many of the same panelists who also serve on other dispute resolution providers.

If you have questions about the services performed by the NAF, feel free to contact their helpful staff by phone or e-mail.

[domains]

pljones,

Thanks for the clarification!

Now I understand why cases are published from both WIPO and NAF.

How is it decided which body hears the case?

domains

[pljones]

Under the ICANN Rules, complainants decide whether to bring their case to any one of the four ICANN approved dispute providers. Those dispute providers are: WIPO, NAF, CPR Institute For Dispute Resolution and the Asian Domain Name Dispute Resolution Centre. eResolution was a dispute provider before ceasing operations in 2001. I have a page on this at http://www.udrplaw.net/Providers.htm .

By far, the two most popular dispute providers are WIPO and NAF. Complainants in Asia seem to be bringing more cases to ADNDRC. The cases going to CPR are much less than WIPO and NAF, probably because their fees are so much higher and their website isn't as user friendly.

[jberryhill]

"How is it decided which body hears the case?"

The complainant picks. Cute, isn't it. There are two other dispute resolution providers in addition to WIPO and NAF. There is the ADNDRC in China and the CPR-ADR in New York.

NAF and the others have been private dispute resolution providers before there was a UDRP. Many parties to contracts specify some form of private dispute resolution, because it can be a lot cheaper than going to court.

One of NAF's mainstays is the credit card business. If you read your credit card agreement, you will notice that you probably agreed to arbitration, and waived your right to go to court, when you signed up for the credit card. The NAF provides those services in bulk to the credit card industry, and you might guess what some of the criticisms of the NAF have been in that arena.

[domains]

Great posts. Thank you both VERY much.

[Drewbert]

Forum shopping.

[pljones]

One way to look at this is that ICANN decided early on to have more multiple dispute providers available to decide UDRP cases. So instead of having only WIPO, ICANN approved NAF, eResolution, CPR, and later ADNDRC. The drafters of the policy left it to complainants to select the dispute provider- a random system wasn't instituted then, and it probably isn't necessary now.

To an extent, forum shopping exists in the courts, just as it exists *may* exist in the UDRP. There are others on this board who feel otherwise though.

[jberryhill]

"Forum shopping."

eResolution, which had an early streak of decisions in favor of the respondent, went out of business, as was predicted in this article prior to the UDRP:

http://www.icannwatch.org/archive/ud...incentives.htm

[Ari Goldberger]

There are a few reasons why a trademark holder might pick NAF over WIPO.

1- NAF has lower fees;

2- NAF, in the past at least, has relied on a smaller pool of panelists for single-member cases, and they have a few who seem to rule in favor of trademark owners quite frequently. This seems to be changing.

3- NAF charges $100 for filing extensions, which might discourage a respondent from seeking one - and be faced with an extremely short period of 20 days to build a defense;

4- NAF allows for supplemental filings (Supplemental Rule 7), so a Complainant is permitted to file a reply to the response. This is not permitted at WIPO, absent the permission of the Panel.

But, there are two little known benefits for the Respondent at NAF:

1- If the 20-day deadline falls on a weekend or holiday, the response is timely if filed by midnight central time the next business day; and

2- NAF has interpretted Supplemental Rule 7 to permit a Respondent to file its Response in the form of an additional submission 5 days after the deadline for the Response, even if the Respondent completely missed the deadline, since the rule says "any party" can file a submission after the deadline. However, you can not select a 3-member panel at that late date. I've used this a few times successfully.

[domains]

2- ... This seems to be changing.

Agreed. Let hope this trend continues. Too many frivolous actions.

Great post. Thank you very much.

[pljones]

Ari-

Just to clarify on supplemental filings, WIPO panels have allowed additional submissions from both parties in certain cases. Although NAF permits additional submissions with Sup. Rule 7, the acceptance of those submissions is still left to the discretion of the Panel. You can read further comments on this issue on my UDRPReview page at UDRPlaw.net.

My recommendation in certain cases has been to only file additional submissions if the material is new evidence not available during the filing of the complaint, the submissions refer specifically to new information raised in the response not available when the complaint was filed. The submission also includes a letter to the Panel requesting consideration of the matter based on Sup. Rule 7, UDRP Rule 10, Rule 15(a), and out of equity to the parties based on the specific facts of the case. The key is to use these submissions sparingly, when they have real value to add to the case, and not merely to rehash arguments made in the complaint.

[Ari Goldberger]

How many times has a NAF panel refused to consider a timely filed, and properly constituted, Rule 7 submission? I can't imagine that it has occurred very often. Thanks.

[pljones]

I have only looked closely at the cases issued by the National Arbitration Forum. Timely supplemental filings were not considered in case 105950 (but compare with case 102184).