The first procedural issue from the human rights perspective is lack of choice-of-law rules for the adjudication process in the UDRP which gives panelists discretion to apply ‘any rules and principles of law that [they] deem applicable’. This could lead to a choice of laws that favour to trademark holders who are paying the panelists’ fee, and resulted in the application of different legal standards based on the nationality of the respondents and/or members of the panels—arguably, straining principles of equality and non-discrimination under human rights law. It has also resulted in situations where two opposing decisions are ‘correct’ at the same time. For example, Julia Roberts was granted rights to the website juliaroberts.com and Hillary Clinton has rights to hillaryclinton.com, while Bruce Springsteen was denied rights to the brucespringsteen.com. This undermines the fairness, consistency, and predictability of the UDRP.
Moreover, rules on accreditation and appointment of the UDRP panellists lack transparency, and lead to ‘revolving door’ of UDRP panellists: trademark lawyers often serve as lawyers for their clients one day and as UDRP panellists the next day. Lack of due process safeguards in the UDRP procedure is a further strain—eg notice about UDRP proceedings is considered effective from the time the complaint was sent to the respondent by e-mail, rather than the date the respondent actually received notice (that is, opened the e-mail)
read more (Oxford Law)
Moreover, rules on accreditation and appointment of the UDRP panellists lack transparency, and lead to ‘revolving door’ of UDRP panellists: trademark lawyers often serve as lawyers for their clients one day and as UDRP panellists the next day. Lack of due process safeguards in the UDRP procedure is a further strain—eg notice about UDRP proceedings is considered effective from the time the complaint was sent to the respondent by e-mail, rather than the date the respondent actually received notice (that is, opened the e-mail)
read more (Oxford Law)
