[registrars] UDRP not really arbitration, US 3rd Circuit rules

[Michael Bilow <mbilow@registrationtek.com>]

[Tradition disclaimer: This is not legal advice.]

Eric Dluhos, a pro se litigant who apparently argued his case personally
before the United States Circuit Court of Appeals for the Third Circuit,
won a unanimous decision that seems to pretty well eviscerate the UDRP
process.  My reading of the court's opinion, as a practical matter, is
that a prospective complainant can only lose but not win a UDRP hearing.

This decision does not seem to have attracted a lot of attention, but it
could have interesting implications.  If the UDRP results are not entitled
to any weight or deference by a court, and a losing registrant in a UDRP
process is entitled to de novo review upon filing suit in court, then what
purpose does the UDRP serve?  If the complainant wins a UDRP hearing, the
losing registrant will simply litigate do novo; if the complainant loses a
UDRP hearing, any litigation must follow the adverse conclusion.

-- Mike


   Method of Resolution in Domain Name Case Not True Arbitration
   Shannon P. Duffy
   The Legal Intelligencer
   02-21-2003

   An arbitration panel's decision in a dispute over the rights to an
   Internet domain name is not entitled to "extremely deferential" review
   in the federal courts because such proceedings do not fall under the
   Federal Arbitration Act, the 3rd U.S. Circuit Court of Appeals has
   ruled.

   In Dluhos v. Strasberg, a unanimous three-judge panel found that the
   dispute resolution policies established by the Internet Corporation
   for Assigned Names and Numbers does not qualify as a true arbitration
   under the FAA.

The full article is available here:

http://www.law.com/servlet/ContentServer?pagename=OpenMarket/Xcelerate/View&c=LawArticle&cid=1045754124197

The opinion of the court is available here:

http://www.ca3.uscourts.gov/recentop/week/013713.pdf (opinion)
http://www.ca3.uscourts.gov/recentop/week/013713o.pdf (corrections)