This is a post written by contributor, Paul Raynor Keating. Paul is an attorney specializing in domain names and related matters. He lives and works in Barcelona, Spain.
I was recently surprised to read the following WIPO notice received by a friend of mine the other day:
Further to our Acknowledgement of Receipt of Complaint, as required by Paragraph 4(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules) and Paragraph 5 of the WIPO Arbitration and Mediation Center (the Center) Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules), we have reviewed your Complaint to verify whether it satisfies the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules and Supplemental Rules.
In accordance with Rules, Paragraph 4(b), you are hereby notified of the following formal deficiency with your Complaint:
(1) The text below section (C) of the Complaint, with the emboldened heading “Bad Faith in the Domain Name Use”, does not appear to describe why the domain name should be considered as having been registered and being used in bad faith.
Please note that paragraph 4(a)(iii) of the Policy and paragraph 3(b)(ix)(3) of the Rules require a complainant to describe why the domain name(s) should be considered as having been registered and being used in bad faith.” (Emphasis in original).
Procedural requirements as the form of a complaint are specified in the UDRP and Supplemental Rules and compliance with matters of form are appropriate. Thus, for example, checking to verify that the name of the respondent comports with the WHOIS is a procedural matter because of the notice requirements in the UDRP. Other examples of form verification are the presence of a mutual jurisdiction selection and the required “verification”.
It is entirely inappropriate, however, for an ADR provider to conduct a substantive review of the complaint to verify that the complainant has included sufficient argument and evidence to sustain its burden of proof. There is no requirement in the UDRP or any of the Supplemental Rules stating that a complainant must provide argument and evidence in order to file a UDRP complaint. They only describe the substantive content needed to prevail. ADR providers are supposed to be neutral.
Notices such as the above effectively give the complainant a second bite at the apple because they are being advised to review and correct substantive issues pertaining to their burden of proof. They turn the ADR provider into an editor working for the benefit of the complainant. The proper course would be to refrain from any such apparent impropriety and let the panelist deal with the matter – the consequences of which must be reserved to the parties.
I question the propriety of the above notice for the simple reason that it evidences a substantive review of the complaint on the part of WIPO to correct a “deficiency” which would otherwise have led to a denial of the complaint.
Perhaps I shouldn’t be surprised. But I am continually disappointed at the ever expanding ways in which ADR providers assist complainants in the UDRP process. I have long objected to the constant stream of “reminders” sent to complainants about deadlines and the like, particularly those from NAF reminding complainants to correct complaints that have been rejected for filing. I have never once seen a “reminder” forwarded to a respondent. ADR providers must avoid the appearance of impropriety so as to protect the overall system from criticism and legal attack. ADR providers are supposed to be neutral. Matters of proof are the exclusive realm of panelists and WIPO is crossing the line.
The “deficiency” process is further marred by the way respondents are treated in the process. The domain is locked the minute the ADR provider receives a filing. The lock remains in place during the 5-day correction period. However, respondent is not permitted to see a copy of the complaint that had been submitted with the argument being that the UDRP has not “commenced”. My response is that the domain should then remain unlocked until the complaint is accepted for filing. The fact that the ADR provider maintains the lock and refuses to provide respondent with a copy of the “defective” complaint is merely an exercise to limit any possible advance notice to the respondent.