Under Article 11 of the ICANN Uniform Domain Name Dispute Resolution Policy (UDRP) Rules, the language of the dispute resolution process is determined by the language of the domain name registration agreement. This stipulation is based on a straightforward rationale: since the domain name registrant has entered into the agreement, it is assumed that they are proficient in the language of the contract and, thus, are capable of defending themselves in the same language during legal proceedings.
This requirement, however, presents a significant challenge for trademark owners who wish to initiate UDRP proceedings against a domain name holder. Given that the complainant is not a party to the original registration agreement and the agreement’s language may not be publicly accessible, determining the language in which to file a complaint becomes a complex task. The complainant’s initial step is often to consult the WhoIs database to identify the registrar of the domain name in question. This can lead to the registrar’s website, where the registration agreement might be found—if one is fortunate enough to find a single-language version of the contract. However, this is seldom the case. For instance, GoDaddy, a leading registrar, provides its services and contractual agreements in multiple languages, reflecting the global nature of domain name registrations.
The task is further complicated by the fact that many countries and regions are multilingual, and the ‘country’ field in the WhoIs data may not reliably indicate the contract’s language, especially when anonymization services are used. This ambiguity can be exploited by cybersquatters, who may intentionally use domain names in ways that confuse the complainant about the procedural language, an action that can be considered bad faith.
Moreover, it’s not uncommon for dispute resolution bodies, like the WIPO Arbitration and Mediation Center, to request that the complaint be translated and resubmitted, imposing additional burdens on the complainant.
To address these challenges, EURid, the European domain name registry, has adopted a pragmatic solution by incorporating the language of the registration contract directly into the WhoIs data. This approach significantly streamlines the dispute resolution process by providing clear and immediate access to the contractual language, thereby facilitating the protection of intellectual property rights.
In light of the benefits observed from EURid’s approach, there’s a compelling argument for ICANN to adopt a similar policy. By making the language of the registration agreement readily available in the WhoIs data, ICANN can enhance the transparency and efficiency of the UDRP process, ensuring that all parties are better equipped to navigate the complexities of domain name disputes.
