IMPROVING ICANN IN TEN EASY STEPS: TEN SUGGESTIONS FOR ICANN TO IMPROVE ITS ANTI-CYBERSQUATTING ARBITRATION SYSTEM

Abstract

With the ICANN domain name dispute resolution regime in place for just over a year, practitioner Robert Badgley critiques its operation and identifies a number of early problems which have permitted different arbitration panels to reach contrary conclusions on the same issue. Badgley then offers ten steps that ICANN should undertake to cure these problems, with the overriding theme being to eliminate ambiguity and facilitate establishment of a uniform body of ICANN "precedent" for cybersquatting disputes. Establishing the context for his analysis, the author first examines the ICANN "statute" governing cybersquatting disputes and the ICANN rules of procedure governing the arbitration system. The analysis defines "cybersquatting" and describes the power and function of ICANN arbitrators. Next, Badgley identifies and suggests resolutions for five procedural problems involving issues, such as, what should be the consequence of the failure to respond to a complaint, and what sanctions should be available for a complainant who engages in reverse domain name highjacking. Finally, the author surveys substantive problems with the ICANN "statute. " He identifies and recommends solutions to problems, such as, the need to clarify the analysis of the "identical or confusingly similar" element of an ICANN claim, how that analysis should be applied to "gripe sites," and the inherent problem of proving a negative under the "rights or legitimate interests" element.