Save UDRP from Bad Panel Decisions — How to

A proposal to rectify bad UDRP decisions when there is dissenting opinion.

If you read any of the domain blogs and forums out there, you probably read regarding the recent LH.com UDRP decision courtesy of a three person panel at National Arbitration Forum. The panel handed over the generic domain name LH.com to airline Lufthansa.

Apparently two of the panelists (Hon. Carolyn Marks Johnson and David Tatham) didn’t find the irony in their acknowledgment that LH.com’s owner, Future Media Architects, invests in a number of two and three character domain names, and thus probably didn’t even have Lufthansa in the back of its minds when it registered the domain name.

But one panelist, David E. Sorkin, understood that. He dissented on the opinion, writing:

I respectfully dissent. I simply do not believe it is likely that Respondent’s reasons for acquiring the disputed domain name were related in any way to Complainant or its mark, and therefore would not find that the domain name was registered in bad faith, as required by Paragraph 4(a)(iii) of the Policy.

So one panelist got it right, two got it completely wrong, but Future Media Architects loses the domain. Well, not immediately. Future Media Architects has filed a lawsuit to keep the domain name. You can’t blame it. This domain has a liquidation value of $200,000 or more, and a 7 figure end user value.

But why ought to this go to the courts now? I propose a change to UDRP arbitration when there is a split panel: either side can request one additional three person panel review.

In this case, Future Media Architects could request a fresh review with three fresh panelists. If it loses again, it has to appeal outside of the arbitration system (i.e. lawsuit). If the fresh panel has a few smart folks on it, the matter will be settled by a unanimous decision.

What do you think?