When someone has obtained a domain name that you think should rightfully have been yours, or if someone feels the same way about your domain name (what old-timers might still call “cybersquatting”), the main thing you’re going to fight about is who gets the domain name. Money is likely going to be secondary, especially if you can resolve the ownership issue efficiently.
ICANN foresaw this and required all players in the domain-name system to agree to a kind of international arbitration with the mellifluous name of “Uniform Domain-Name Dispute-Resolution Policy”—much better known as “UDRP.” Whether you know it or not, if you own a domain name, you’ve contractually agreed to resolve ownership disputes this way.
The beauty of UDRPs is that the domain-name registrars have also agreed to play along. If the complainant wins, the registrar will automatically transfer the domain name. There is no need for “enforcing the judgment.” All the winner has to do is take some technical steps and the transfer just happens. To a lawyer, this almost looks like magic.
UDRPs are very different from lawsuits or even normal arbitrations. ICANN and the three officially-sanctioned arbitration providers have promulgated specific rules of procedure. Since domain names are international in scope, it should come as no surprise that these rules won’t look or behave very much like U.S. rules.
The most important difference is what the complainant has to do get get started. With a U.S. lawsuit, you just file a complaint that makes mere allegations of fact. You don’t need to prove anything. That’s for later. In a UDRP, by contrast, your complaint is often your only chance to present evidence, so it must be backed by evidence. The same thing goes for the domain-name holder’s response. Instead of just “answering” the complaint, the respondent must put forth evidence. Although the rules of evidence aren’t as strict as in a court, they can’t just be ignored.
UDRPs can move fast. The domain-name holder often has only a few weeks to respond to the complaint. And that includes marshaling and filing evidence. If you ignore or delay after receiving a UDRP complaint, you can lose your domain name before you know what happened. Making matters worse, the notice of complaint isn’t in a form that looks like it’s the emergency that it is, so it can be easy to overlook.
UDRPs can also be inconsistent, even whimsical. A single arbitrator (sometimes a panel of three) sits in judgment without appeal. Arbitrators don’t have to follow precedent. Other than their own sense of professionalism (which isn’t to be discounted), there’s little pressure to get things right.
The UDRP is the most common way to resolve disputes over domain names, but it’s not the only way. There’s an even more streamlined procedure called a URS (for “uniform rapid suspension”), but since it doesn’t allow for transfer of the domain name, it hasn’t been very popular. You can also take the dispute to a regular court under the Anticybersquatting Consumer Protection Act (“ACPA”), which also allows for the recovery of statutory or compensatory damages. The ACPA can even be used to overturn a bad URDP ruling (sometimes known as “reverse domain-name hijacking”).
No matter the venue, serious complainants must be prepared to prove not only their trademark interest in the domain name (a trademark registration is ideal), but also that the current domain-name holder acted in bad faith in obtaining the domain name. There a number of ways to do this, but the requirement can’t be ignored. Bad faith is something of a sine qua non of domain-name disputes.