Mediation – making dispute resolution more accessible

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BY
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Richard Plater​

This week saw the publication of the Intellectual Property Office’s (IPO’s) IP Crime Report for 2015/16. The report reveals the scope of the challenge faced by businesses in keeping their brand identities and other creative outputs undiluted. The importance of meeting this challenge has been highlighted by some recent official statistics, which show that the UK creative economy is adding new jobs at more than twice the rate of the economy in general while creative exports grew more than four times faster than the economy wide average.

The internet is a vital driver of future economic growth and if the sort of vibrant digital future we all want to see is to be realised it’s important that those who use internet platforms to create and innovate see the rewards from their efforts return to them. That means a robust IP rights protection framework and, in our industry sector specifically, mechanisms to ensure that online trading identities are not diluted by domain names that are being used unfairly to confuse or mislead.

This is a focus for us, both in terms of the safeguards we offer for .UK and within the broader context of the preparations which are now under way within ICANN for a second round of new gTLDs. It’s timely to ask whether we are doing all we can within .UK and whether or not the advent of more gTLDs will only add to the challenges ahead.

Within .UK we’ve taken steps to ensure that our own award winning Dispute Resolution Service (DRS) is fit for purpose and continues to provide an accessible and cost-effective means for resolving disputes over the use of .UK domain names. After a recent review of the DRS process and a period of public comment, the updated policy and procedures will be active from 1st October. We believe that this latest iteration of the DRS will build on its track record of success and that the voluntary mediation service will continue to be central to that, allowing the parties involved to find flexible and timely resolutions.

Turning to the second round of new gTLDs, we’re optimistic. We believe that an increase in the number of available domain name extensions will provide more opportunities for businesses to establish distinct online spaces within which to transact securely with their customers. As in .UK, realising that positive vision will depend on effective safeguards being in place. In recognition of this ICANN have ensured that a key part of their preparations for gTLD round two is a detailed review of all the IP rights protection mechanisms in place.

One early theme in these ICANN discussions has been to question whether or not mediation could play a greater part within the gTLD rights protection framework. At present, for example, the Uniform Domain Name Dispute Resolution Policy (UDRP) – the DRS equivalent for gTLDs, such as .com, as well as a number of other ccTLDs – does not include an option for mediation.

In its recently published IP Enforcement Strategy the IPO highlights the value of mediation as an alternative to expensive litigation especially for small business or lone creators. Court action will always be appropriate in certain circumstances. Equally, however, it will always impose costs and take time. One commonly expressed frustration amongst rights holders is that the ease and speed of remedies available does not always match the speed with which offending activity can pop-up online. From our experience within .UK, we’ve seen that mediation can be a useful means to address such frustrations by providing a route to much more rapid resolutions.

If the next generation of online innovators is to have their best chance of success, now is the time to consider expanding the use of mechanisms, like mediation, that make timely and cost-effective dispute resolution more accessible. Perhaps a mediation step within the UDRP would be a good place to start.

You can read our most recent annual summary of DRS cases here.

Sources:

IPO Annual IP Crime Report 2015/6

http://www.thecreativeindustries.co.uk/uk-creative-overview/news-and-views/news-creative-jobs-and-exports-outgrow-rest-of-economy#

http://www.nominet.uk/consolidation-changes-dispute-resolution-service-policy-procedure/

https://www.gov.uk/government/uploa..._data/file/522847/IP-Enforcement-Strategy.pdf

https://community.icann.org/display...ms+(RPMs)+in+all+gTLDs+PDP+Working+Group+Home

http://www.nominet.uk/phishing-force-fashion-2015-uk-domain-name-disputes/

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