McGrady on ICANN's New Post UDRP Non-compliance Grievance Process

McGrady on ICANN's New Post UDRP Non-compliance Grievance Process


The Internet Corporation for Assigned Names and Numbers (ICANN) is attempting to deal with the thorny issues of registrar compliance with a very limited arsenal of sanctions. One common non-compliance issue affecting brand owners is registrar failure to transfer a domain name after a Uniform Domain Name Dispute Resolution Policy (UDRP) Panelist so orders. What can ICANN do about it and what are the brand owner's options in the face of non-compliance? Paul D. McGrady, Jr., a shareholder with Greenberg Traurig and author of McGrady on Domain Names, helps practitioners navigate this emerging area of domain name practice. He writes:
 
     In early 2007, ICANN experienced its first major registrar failure when RegisterFly ceased functioning properly . . . . The RegisterFly debacle highlighted a weakness in the ICANN structure, namely the lack of meaningful compliance measures. The current version of the Registrar Accreditation Agreement (“RAA”) contains only the “ultimate” sanction: termination of the registrar’s agreement and accreditation. This outcome is, in effect, a “death sentence” for a registrar, so it lacks proportion to a myriad host of minor offenses that a registrar could conceivably commit. In order to deal with this, and other problems, ICANN has launched a process to consider revisions to the RAA which, depending on the outcome of the process, may have graduated sanctions for violations of the RAA which are, individually at least, unworthy of termination.
 
      . . . .
 
     One common registrar compliance problem that brand owners often encounter is getting a registrar to comply with a UDRP Panelist’s decision to transfer a domain name. A creative speculator could gather all sorts of possible reasons for this failure ranging from simple benign neglect on one side all the way to a belief that a registrar is “in cahoots” with its customers in their acts of cybersquatting (or are, more sinisterly, the registrants themselves, but operating under various false names or shell entities).
 
     . . . .
 
     Unfortunately, because the only sanction for non-compliance is termination, the proposed process [to resolve these common complaints against registrars] lacks teeth unless ICANN is willing to terminate a registrar for failure to transfer a domain name following a UDRP decision. Such a termination, while helpful to the brand owner, must be balanced by ICANN against the disruption such a termination would cause to hundreds or even thousands of otherwise uninvolved domain name registrants who are customers of the non-compliant registrar. Unless ICANN was prepared to terminate its relationship with that registrar, the post-UDRP complaint process may simply “fizzle out.” Hopefully, revisions to the RAA will address this problem with graduated sanctions, perhaps monetary in nature.
 
(footnotes omitted)