Trademark Monopolies in the Blue Nowhere

Abstract

So much has been written and said already regarding the protection of trademarks when they are registered as domain names that yet another piece may seem a bit superfluous. However, although the Uniform Dispute Resolution Policy (UDRP) has been critiqued in many different manners and in many different fora, the greater normative implications of the UDRP and resulting dispute resolution methodology have not been explored to the same extent. This essay explores those normative implications using data reported in other studies as well as data collected specifically for this paper. This essay concludes that the UDRP is a manifestation of the privatization and commercialization of the process of solving disputes regarding who should be the proper registrant of a domain name. This privatization has created a system of compulsory unitization-there are no alternatives. The arbitrated results, under the UDRP, suggest bias on part of the Panelists or the Providers (or both). Trademark owners wrote the UDRP to serve trademark owners. It should be no surprise, therefore, that over 83% of panels favored the complainants in cases brought pursuant to the UDRP. As such, it appears that an unnatural monopoly has been created for trademark owners. Thus, the most important normative implication of the UDRP is that it has chilled trademark owners' motivation to innovate and establish methods of identifying their web pages, other than choosing an obvious domain name. Why invest in something new when the current domain name system is paying off so handsomely for trademark owners?