Ronald D. Green, Jr. on UDRP Panels Going Beyond the Record
In traditional litigation, the court relies upon the parties to define the relevant issues and present all evidence that they deem relevant to the judge. However, in cybersquatting arbitration actions, which have been described as "litigation-lite", arbitration panels regularly go beyond the record presented by the parties and perform independent research to determine whether the domain in question should be transferred to the trademark owner. Ronald D. Green, Jr. examines whether these panels should be performing independent research or whether the parties should be entitled to define the scope of information relevant to the proceeding themselves. He writes:
Permitting the arbitrator to go outside of the record and conduct his own independent research is contrary to the principals of litigation. In the context of litigation, the parties themselves define the issues and evidence which should be before the court. UDRP [Uniform Domain Name Dispute-Resolution Policy] panels do not limit themselves to issues deemed relevant by the parties and are permitted to go beyond the record presented by the complainant and respondent in limited (but sometimes very significant) ways. Moreover, UDRP panels often go beyond the record and conduct independent research to save a complainant or a respondent from sloppy drafting or the absence of a vital exhibit that the party should have known would be highly relevant to the proceeding.
In fact, most often, when a UDRP panel conducts independent research, it is primarily protecting a party to that UDRP from itself. Namely, it is filling in evidence that the party simply neglected to include. For example, in Societe des Produits Nestle SA v. Telmex Management Services, the WIPO [World Intellectual Property Organization] panel conducted independent research and visited the website corresponding to the domain name in question, <nestlefoods.com>, to ensure that it contained “pictures featuring half-naked women” and did not contain “evidence as to Respondent’s rights of the legitimacy of the interest of the Respondent in the contested domain name. [sic]
. . . .
Allowing UDRP panels to go beyond the record submitted by the parties makes arbitrations significantly different from traditional litigation or arbitration. It additionally allows the panel to define its own issues and to go beyond the issues that the parties presumably believed to be important and dispositive when filing the complaint and response. However, without revisions to the UDRP, or the providers’ rules, at least WIPO panels will continue to use independent research to both cover the errors of a complainant or respondent and to deny the claims of complainants, even if the respondent seemingly had no interest in defending its rights to the domain name at issue. When selecting a provider, counsel should consider carefully whether or not it is possible that their client’s case will be helped or hurt of [sic] a panel is allowed to supplement the record of its own accord.
(footnotes omitted)
Subscribers to www.Lexis.com may purchase this entire expert commentary here.