Monday, May 13, 2013

China in Second Place in WIPO Domain Name Disputes

By Zak Muscovitch.

Chinese domain name registrants are taking a strong second place after the United States, in being named as respondents in WIPO domain name disputes.

Since 2000, Chinese complainants have only brought a handful of UDRP Complaints to WIPO, with about an average of only 7 per year or so. On the other hand, Chinese domain name registrants are being increasingly named as respondents in WIPO UDRP proceedings.

Although Chinese complainants have only filed 98 WIPO complaints since 2000 (only .38% of all WIPO UDRP complainants), Chinese respondents have been named in a whopping 2,258 WIPO cases, and make up nearly 9% of all WIPO respondents. 

Although Chinese respondents were only named 43 times in 2000, that number has gradually increased all the way to 501 in 2012. Although United States respondents hold a strong first place with nearly 35% of all WIPO cases being made against them, if the numbers continue their trajectory, we will see increased involvement of Chinese domain name registrants in UDRP's. 


ADNDRC to Become Larger UDRP Player?

What is interesting, is that for some reason, complainants, even when based outside of Asia, are using the ADNDRC particularly where the registrant is located in Asia. Even though such proceedings are often in English, it is apparent that intellectual property counsel are often choosing the ADNDRC to deal with Asian-based cybersquatters, even though they may also use WIPO, NAF, or even the CAC in  many such circumstances. 

Although the Asian-based ADNDRC (Asian Domain Name Dispute Resolution Centre) with offices in Beijing  Hong Kong, Seoul, and Kuala Lumpur, was accredited by ICANN in 2001 as a UDRP dispute resolution provider (shortly after Geneva-based WIPO, Minnesota-based NAF, and the now defunct Canadian-based eResolution), it has not, to-date enjoyed a particularly high profile amongst either North American or European complainants or respondents. 

Nevertheless, according to data from published ADNDRC decisions, it appears to have adjudicated  over 1100 domain name disputes amongst its four offices. In 2012 alone, it adjudicated about 186 domain name disputes. 

From reviewing the domicile of the listed complaints, it appears that although complainants are from all over the world, a disproportionate number are Asian. Furthermore, the vast majority of named respondents in these cases are from Asia and from mainland China, in particular.

Remarkably, some of the world's major brands are using the ADNDRC for their domain name disputes. Major corporations such as 3M, Apple, Zippo, Seiko Epson, Otis Elevator, Bose, and Siemens, to name but a few, have all used the ADNDRC as complainants. In addition, a wide range of large and small Asian and Chinese companies have used the ADNDRC as well, including such major brands as ZTE, Changi Airport Group, Shangri La Hotels, and Cathay Pacific. 

One possible explanation is that the head offices of many non-Asian multinational companies are referring cases involving Asian cybersquatters to IP counsel in Asia, to deal with. Another more likely explanation, is that where a domain name was registered with a Chinese registrar and the language of the registration agreement is Chinese, for example, pursuant to Rule 11 of the UDRP Supplemental Rules, the UDRP proceeding must be brought in the language of the registration agreement.

From the foregoing, it appears that UDRP domain name disputes will increasingly relate to, and involve Asian, and particularly Chinese-based parties. We can therefore expect the ADNDRC to become increasingly prominent in UDRP case adjudication. When the International Trademark Association has their annual meeting in Hong Kong in 2014, we can also expect to see a more prominent role taken by the ADNDRC as a result.

With the application for ICANN accreditation by Middle Eastern-based domain name dispute provider, The Arab Center for Dispute Resolution (ACDR), if approved, we will perhaps also see an increase in Middle Eastern based complainants as well, although probably not to an extent comparable with the ADNDRC in the short term. 

Since the language of the domain name registration agreement appears to play a significant role in the reason why complaints are brought to the ADNDRC, and since Asian registrars are more common than Middle Eastern ones, the volume of domain name disputes sent to the ACDR once approved by ICANN, would probably not not be comparable to the other regional dispute resolution provider, at least not until greater registrar penetration is achieved throughout arab speaking countries. For example, the only ICANN accredited registrars in the Middle East are in Jordan (1) and the UAE (1). In comparison, there are 32 in China. 

It will be interesting to watch to see if the UDRP continues to greater involve Asian-based parties, and even Middle Eastern-based parties in the future.






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