Web Dispute Resolution Policy
UPDATE May 2011: Following numerous submissions and comments on the last draft, this revised discussion draft is now open for public discussion and comment. Please send all comments to pargy(at)tdc.org.au. Issues for discussion include the breadth of the policy (should it be confined to trade mark issues or can it extend to broader intellectual property issues, such as copyright infringement and trade secret infringement?), the name of the policy (is 'Web' too broad, should it be 'Intellectual Property' or 'Social Networks'?), and the processes and procedures proposed (is it too complicated, ill-adapted to the different context, or too simplistic?).
In essence, what is proposed is an independent and neutral
dispute resolution infrastructure analogous to that which supports the UDRP,
but which can be contractually invoked by operators of social networking and
other Web 2.0 sites in the event of intellectual property complaints. The offering is intended
to relieve site operators of the burden of establishing their own intellectual
property dispute resolution infrastructure and its associated staffing and
administration costs. It is also intended
to free ride on the credibility, acceptance
and goodwill that exists toward the UDRP process by the Internet
community.
To invoke the scheme, the terms and conditions of membership of a site
simply need to provide that, in the event of a complaint being made that a site member
is infringing another person’s intellectual property rights, the site member
agrees to submit to an administrative proceeding under the WDRP, and the site
operator will abide by the outcome.
There will be Panellists to whom WIPO and any other
accredited service provider will refer the case for decision, with a fee being
paid by the complainant as with the UDRP.
The outcomes need to be capable of simple and, ideally, automated,
implementation by the site operator. At
this stage the only two outcomes being contemplated are dismissal of the
complaint or cancellation and/or banning of the respondent’s site membership. Whilst cancellation of a person’s site
membership is drastic, bear in mind that the complainant will need to prove the
elements of the complaint including trade mark confusion, lack of any
legitimate rights on the part of the respondent, and bad faith registration or
use of the impugned words. We are
proposing to use the auDRP variant of the UDRP both because it accommodates
complaints about the use of someone’s name and also because it uses the disjunctive
“or” to cover bad faith registration or
good faith registration with subsequent bad faith use.
At this stage our thoughts are that the scope of the
WDRP will be confined to complaints about intellectual property rights, with
very similar criteria to be applied to those set out in paragraph 4(a) of the
auDRP. There is a school of thought that
seeks to add to that scope complaints in respect of unfair trade and the like. Views are sought in
relation to the expansion option both in terms of scope and also succinct
criteria, such as ‘a qualitatively substantial reproduction’ of complainant’s
work.
Philip N Argy
Chairman
Planning
Committee
Web Dispute
Resolution Policy
Discuss using
#wdrp on Twitter or, preferably, join the WDRP discussion group on Facebook.
pargy[at]tdc.org.au