Submitted by ACIRAMember on Wed, 09/16/2020 - 14:25
The CDRP as a framework is largely based off of the UDRP, and together their primary goal is to quickly resolve clear cut cases of bad faith domain name registrations between third parties. Its intent and dominant use has been for well-known trademarks to protect their intellectual property and to stave off blatant bad faith domain registrations.
The framework and process has largely been modeled around this goal.
However, we have seen that the CDRP has heard complaints which are largely outside of this intended scope, to include deliberations in matters that involve business partnership disputes, contractual disputes, and other more complex matters. In some cases, the panelists have appropriately determined that the scope of the dispute before them is in excess of the CDRP mandate. While in other decisions, zealous panels have overstepped their purpose and interfered in more complex disputes.
This inconsistency in adherence to the scope of the CDRP raises the issue of whether the CIRA is prepared to handle the inevitable liability it will attract if it continues to allow the CDRP to be used as a forum it was never intended to be used for. There are clear cases where parties have used the CDRP in an ill-fated manner to obtain an advantage amidst larger disputes which are at risk of or in preparation of litigation.
At the path the CIRA is going, the CDRP’s scope is going to continue to be broadened and used by zealous parties to gain ancillary benefit or leverage during disputes. This will expose the CIRA to unanticipated liability as it continues to interfere in matters which involve issues of property rights. The CIRA cannot protect itself through provisions of the Registrant Agreement in this regard, as the Supreme Court has recognized that domain names are a property right and by extension the CIRA does owe some sort of fiduciary duty to registrants of .CA domain names.
It is my suggestion that the CIRA needs to conduct a thorough review of the CDRP, and introduce more screening measures (or other reform) to ensure that complaints are brought within the scope of the CDRP, and that the service providers adhere to the intended scope of the CDRP. As it stands, there is a clear financial incentive for the service providers to hear all disputes, regardless of their subject matter, as long as the dispute vaguely involves a .CA domain name and there is satisfaction of Canadian presence requirements.
This is an issue that is going to affect the CIRA at one point or another, as it is inevitable for the CIRA to be challenged in court as to the interference and legitimacy of the CDRP in matters of property rights and whether it owes any fiduciary or other legal obligation in the best interests of the registrants.
I welcome suggestions and submissions by the candidates on this subject.