ATYPICAL UDRP DECISIONS: AN EXTENDED INTERPRETATION OF THE POLICY OR A DISSENTING OPINION OF THE PANEL

Abstract

This article is the investigation of the main causes of non-classical decisions in the practice of domain name disputes considering by UDRP arbitrators panels, which are not based on the priority of the domain name registration date or the priority of the date of the acquisition of the right for the trademark. The authors review unconventional decisions of various accredited arbitration centers for compliance with equity and good faith principles proclaimed by the World Intellectual Property Organization, which are applied in resolution of disputes between trademark rightholders and domain name administrators. The authors focus on the complexity of the practical application of equity and good faith principles, on the risk of subjective interpretation of both of the principles themselves and the circumstances of disputes considered on their basis. The authors attempt to identify the most frequent decisions made by arbitrators panels as a result of exceptional circumstances assessment, as well as the UDRP Policy extensive interpretation, and to determine the regularity and legitimacy of such decisions. In the article the authors assume that the prevailing part of atypical UDRP decisions is based on the application of fundamental legal principles of equity and good faith, has a structural consistent character and is not a special opinion of individual arbitrators. To sum up, the authors express the opinion on the necessity to improve the approaches to the interpretation of the UDRP Policies and Rules in order to increase the efficiency of the UDRP procedure.