Background
In March, 2010, DNattorney.com released a comprehensive study (the Original Study) on the concentration of appointments by the National Arbitration Forum (NAF) among a handful of arbitrators on its roster.
The NAF is a mandated Dispute Resolution Provider by the Internet Corporation for Assigned Names and Numbers (ICANN) to adjudicate domain name disputes between trademark owners and domain name owners involving allegations of cybersquatting. These proceedings are known as Uniform Dispute Resolution Policy disputes or “UDRP disputes” and usually argued by domain name attorneys on behalf of their clients. The NAF is one of four Dispute Resolution Providers mandated by ICANN and has a large market share of UDRP disputes. The overwhelming majority of UDRP disputes before the NAF are adjudicated by a single-member panel where an arbitrator is appointed by the NAF. There is a paid option for upgrading to a three-member panel, in which case each disputant can nominate an arbitrator of its choice, in addition to the one appointed by the NAF.
DNattorney.com undertook the Original Study in order to determine whether the appointments of single-member panels were random. Randomly selecting arbitrators would ensure fairness and a lack of arbitrariness in NAF decisions. The Original Study, which can be seen at https://dnattorney.com/study, culled case-related data from the NAF’s website. This data revealed that there was a significant concentration of appointments among 10 adjudicators, one of which presided in approximately 966 cases of the nearly 10,000 heard to date, representing close to 10 per cent of UDRP proceedings at the NAF.
Current Study
In July, 2012, DNattorney.com updated the Original Study by gathering data on the 10 most appointed panelists identified previously. Of those panelists, three are no longer on the NAF’s roster, leaving seven comparisons to be made in the Current Study.1
The Current Study used data from the NAF’s website and searchable databases.
All the data used was pulled on July 5, 2012. The total number of cases heard in the Current Study’s period was approximately 4,144. This number includes cases categorized as “Cancelled,” “Claim Denied,” “Split Decision,” and “Transferred,” meaning cases categorized as “Withdrawn” or “Pending” were not included in the Current Study. The Current Study did not distinguish between single-panel decisions and three-party panel decision but it is widely understood by domain name lawyers that the number of three-party panel decisions is a small fraction of disputes
adjudicated by the NAF. For example, Paul Dorf, one of the panelists analyzed, was assigned to a total of 192 cases during the Current Study’s period of time, only two of which were three-party panels. In other words, of the total number of cases this panelist heard during the Current Study’s period, 99 per cent represented cases in which he was appointed by the NAF.
The Current Study broke down the overall number of UDRP disputes assigned to the panelists over the 10 year period comprising the Original Study by averages per year and per month. For example, in the Original Study, Carolyn Marks Johnson was assigned to approximately 966 cases over an approximate 10 year period, which equates to nearly 97 disputes per year and nearly 8 disputes per month. The Current Study then placed those annual and monthly figures alongside annual and monthly figures for the same panelists over a 28 month period (the time since the last report was released).
Of the seven Panelists comprising the Current Study, Carolyn Marks Johnson is the only one whose numbers stayed largely constant (increasing by one) – every single other Panelist was appointed to markedly more UDRP cases on average per year and per month as compared to the previous report. This suggests that DNattorney.com’s Original Study did not impact the NAF’s practice of concentrating UDRP disputes among a handful of Panelists.
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1 Was reportedly deceased on July 5, 2012.
Comparisons between Original Study and Current Study
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The new most appointed arbitrator by the NAF is James A. Carmody, who decided approximately 354, or 8.5 per cent of the 4,144 UDRP disputes in question during the Current Study’s period (March 5, 2010 – July 4, 2012).
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The arbitrator with the highest spike in UDRP disputes is Karl V. Fink, who went from an approximate average of 50 cases per year in the Original Study’s period to nearly 132 cases per year in the Current Study’s study period. This equates to an approximate 11 UDRP disputes per month.
-
As mentioned, six of the seven arbitrators were appointed to markedly more UDRP disputes than they were in the Original Study’s period.
-
Karl V. Fink went from hearing an average of 50 UDRP disputes per year in the Original Study’s period to an average of 132 UDRP disputes per year in the Current Study’s period. This represents an increase of approximately 82 cases per year.
-
Tyrus R. Atkinson went from hearing an average of 62 UDRP disputes per year in the Original Study’s period to an average of 132 UDRP disputes per year in the Current Study’s period. This represents an increase of approximately 70 cases per year.
-
James A. Carmody went from hearing an average of 89 UDRP disputes per year in the Original Study’s period to an average of 156 UDRP disputes per year in the Current Study’s period. This represents an increase of approximately 67 cases per year.
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Charles K. McCotter Jr. went from hearing an average of 82 UDRP disputes per year in the Original Study’s period to an average of 132 UDRP disputes per year in the Current Study’s period. This represents an increase of approximately 50 cases per year.
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John J. Upchurch went from hearing an average of 48 UDRP disputes per year in the Original Study’s period to an average of 96 UDRP disputes per year in the Current Study’s period. This represents an increase of approximately
48 cases per year. -
Paul Dorf went from hearing an average of 44 UDRP disputes per year in the Original Study’s period to an average of 84 UDRP disputes per year in the Current Study’s period. This represents an increase of approximately 40 cases per year.
All of the Panelists mentioned are from the Unites States. When the Current Report was undertaken, there were 136 Panelists on the NAF’s roster, 70 of whom were from the United States. There were 33 other countries represented on NAF’s roster and NAF regularly adjudicates UDRP disputes between parties in various jurisdictions outside the United
States. Notwithstanding the fact that over half of the UDRP’s Panelists are American, this data suggests that Panelists from other countries are not being appointed to decide UDRP disputes at the same rate as the Americans.
For example, a highly regarded Panelist from Australia has only been on 131 panels from September 6, 2005 – July 4, 2012, almost a 7 year period. To put this in context, James A. Carmody, an American, has been on 356 panels between March 5, 2010 and July 4, 2012, a 28 month period.
Total Number of Cases Where Panelists have been Appointed between Feb 4, 2000 and July 4, 2012*
|
Cancelled |
44 Cases |
Since 02/29/2000 |
|
Claim Denied |
1,816 Cases |
Since 03/09/2000 |
|
Split Decision |
73 Cases |
Since 05/18/2000 |
|
Transferred |
13,066 Cases |
Since 02/04/2000 |
|
TOTAL
|
14,999 Cases |
* Tallies do not include cases categorized as “withdrawn” or “pending”
in NAF’s Searcheable Case database. When included, the total number
of cases heard in this period is 17,311 (there have been 2078 cases “withdrawn”
and there are 234 cases “pending.”) Tallies may include three person panel
decisions.
______________
2 Ibid
Total Number of Cases Where Panelists have been Appointed between
March 5, 2010 and July 4, 2012*
|
Cancelled |
12 Cases |
Since 03/10/2010 |
|
Claim Denied |
377 Cases |
Since 03/08/2010 |
|
Split Decision |
24 Cases |
Since 03/12/2010 |
|
Transferred |
3,731 Cases |
Since 03/05/2010 |
|
TOTAL
|
4,144 Cases |
* Tallies do not include cases categorized as “withdrawn” or “pending”
in NAF’s Searcheable Case database. Tallies may include three person
panel decisions.
Number of Cases Each Panelist from Last Report has been Appointed
to between March 5, 2010 and July 4, 2012* Arbitrators are listed in
order of most appointed in the top ten in previous report
|
Carolyn Marks Johnson |
Cancelled – 1 PERCENTAGE OF TOTAL CASES SINCE LAST STUDY* – 5.3 |
Since 03/10/2010 |
|
James A. Carmody |
Cancelled – 0 PERCENTAGE OF TOTAL CASES SINCE LAST STUDY* – 8.5 |
Since 03/08/2010 |
|
Charles K. McCotter Jr. |
Cancelled – 2 PERCENTAGE OF TOTAL CASES SINCE LAST STUDY* – 7.2 |
Since 12/02/2011 |
|
Ralph Yachnin |
No Longer on Roster |
No Longer on Roster |
|
Tyrus R. Atkinson Jr. |
Cancelled – 0 PERCENTAGE OF TOTAL CASES SINCE LAST STUDY* – 7.1 |
Since 06/01/2010 |
|
Karl V. Fink |
Cancelled – 0 PERCENTAGE OF TOTAL CASES SINCE LAST STUDY* – 7.6 |
Since 04/07/2010 |
|
John J. Upchurch |
Cancelled – 1 PERCENTAGE OF TOTAL CASES SINCE LAST STUDY* – 5.6 |
Since 05/11/2012 |
|
Harold Kalina |
No Longer on Roster |
No Longer on Roster |
|
Paul Dorf |
Cancelled – 0 PERCENTAGE OF TOTAL CASES SINCE LAST STUDY* – 4.6 |
Since 06/30/2010 |
|
Louis E. Condon |
No Longer on Roster |
No Longer on Roster |
* Tallies do not include cases categorized as “withdrawn” or “pending”
in NAF’s Searcheable Case database. Tallies may include three person
panel decisions.
Comparisons between Previous Study and Current Study*
|
Panelist |
Average Cases Assigned in Previous Study – Previous Study Encompassed a 10 Year Period |
Average Cases Assigned in Current Study – Current Study encompassed a 28 Month Period |
|
Carolyn Marks Johnson |
Average Assigned Per Year: 97 Cases |
Average Assigned Per Year: 96 Cases |
|
James A. Carmody |
Average Assigned Per Year: 89 Cases |
Average Assigned Per Year: 156 Cases |
|
Charles K. McCotter Jr. |
Average Assigned Per Year: 82 Cases |
Average Assigned Per Year: 132 Cases |
|
Ralph Yachnin |
Average Assigned Per Year: 72 Cases |
No Longer on Roster |
|
Tyrus R. Atkinson Jr. |
Average Assigned Per Year: 62 Cases |
Average Assigned Per Year: 132 Cases |
|
Karl V. Fink |
Average Assigned Per Year: 50 Cases |
Average Assigned Per Year: 132 Cases |
|
John J. Upchurch |
Average Assigned Per Year: 48 Cases |
Average Assigned Per Year: 96 Cases |
|
Harold Kalina |
Average Assigned Per Year: 46 Cases |
No Longer on Roster |
|
Paul Dorf |
Average Assigned Per Year: 44 Cases |
Average Assigned Per Year: 84 Cases |
|
Louis E. Condon |
Average Assigned Per Year: 44 Cases |
No Longer on Roster |
* Rounded to the nearest whole number.
|
|
|
|
|
1351489 |
Claim Denied |
Nominated by Disputant |
|
1422581 |
Claim Denied |
Nominated by Disputant |
|
TOTAL
|
2 of 192 |
* Tallies do not include cases categorized as “withdrawn” or “pending”
in NAF’s Searcheable Case database.
The Current Study was conducted by Michael Ettedgui, Student at Law,
Osgoode Hall Law School.
Download in PDF format
______________
3 Ibid