Due to the increase in global internet usage and the huge number of registered domains (over 200 million), the number of cases filed through the UDRP has grown significantly as has the escalating complexity of issues surrounding the internet. Over the past decade, however, the formal provisions outlined in the UDRP have changed very little. The UDRP has seen its share of increasingly arduous cases and the formal provisional system is struggling to stay ahead of the issues it is ultimately responsible for resolving.

The UDRP, a solution born out of necessity

Since its inception in October 1999, the Uniform domain name Dispute Resolution Policy (UDRP) has become the primary forum for alternative dispute resolution of domain registrations. As with most rapidly developing technologies, online issues often land in the judicial system before case law and regulations are well established. This is especially apparent in the area of trade mark law. As a result, the UDRP became the designated forum for businesses or individuals to file a domain dispute when they decided against filing in the court system and it remains the most widely used forum in which domain disputes are heard. The UDRP is generally used to save time and save money, with the expectation that arbitration proceedings would be reviewed by specialists who are well versed in the areas of domain names and trade marks.

UDRP evolves as the online world evolves

In its early days, the UDRP created a great deal of controversy over language in its framework that some perceived as restrictive and narrow. Dissenting opinions were quite common when discussions regarding relevant trade marks or bad faith use were mentioned as in the 2002 case of Park Place Entertainment Corporation v Anything.com Ltd (WIPO Case D2002-0530). There was a dissenting opinion by one of the panellists over the third party use of the domain name flamingo.com given the generic nature of the name and the fact that the panellist was unsure that the Overature ads were an act of bad faith. With the well-established case law concerning pay-per-click advertising and web traffic monetisation practices, a single panellist would be able to rule on this type of case quickly.

Many also questioned the narrow interpretation of the concept of "rights" under clause 4(a)(i). We often forget that the UDRP expressly states that trade marks or service marks alone are acceptable evidence to demonstrate rights to a domain name; but there was no mention of unregistered rights in the original UDRP. The past 10 years of case law have helped to determine the true extent of rights that can be asserted and relied on in UDRP complaints. In Bruce Springsteen v Jeff Burgar and Bruce Springsteen Club (WIPO Case D2000-1532) the presiding panellist took issue as to whether Springsteen's rights amounted to a "secondary meaning" to the services he provides and eventually decided that the redirection of brucesprinsteen.com to a generic celebrity1000 domain name constituted legitimate non-commercial fair use. It is debatable whether the same decision would be reached today.