India’s Domain Name Dispute Resolution Process: An Empirical Investigation

This paper examines the operation of the Internet domain name dispute resolution policy in India, including a quantitative analysis of all domain name disputes arbitrated under the policy between April 2006 and December 2011. Disputes regarding domain name registrations, including allegations of trademark infringements and transfer disputes, have become increasingly common with the growing commercial potential of the Internet. Simon (2012) reported that over 20,000 domain name disputes were resolved over the last ten years under the Uniform Dispute Resolution Policy (UDRP) formulated by the Internet Corporation for Assigned Names and Numbers (ICANN). Though criticisms of the UDRP have often been voiced (Roy, 2012; Simon, 2012; Zainol, 2010), it has proved to be popular because it provides a quicker and cheaper route to dispute resolution compared to the traditional court system. India in recent years has achieved significant success in developing a domestic Internet infrastructure and e-commerce sector, and has emerged as a major destination for international business, especially related to information and communication technologies. Along with this growth, domain name disputes have become more common in India too. The National Internet eXchange of India (NIXI) that operates the Indian country code top level domain (“.IN”) has put in place the .IN Dispute Resolution Policy (INDRP) and the INDRP Rules of Procedure. The Indian policy is modeled closely on the UDRP and follows the rules of procedures of the World Intellectual Property Organization (WIPO), one of the arbitrators empaneled under the UDRP. Studying the operation of the Indian INDRP is important for a variety of reasons. First, as stated before, India is emerging as a major market for online business. Second, the adaptation of international rules to a developing economy is a test case for the emergence of what Helfer and Dinwoodie (2001) have called a “non-national” form of dispute resolution that can be applied to other areas with transborder impact. The third reason is a new trend in infringing activity, in which India has emerged as a major locus. As O’Neill (2009) reported, an Indian registrar offers to register an infringing domain name for a foreign registrant, arranging for the latter a local address as well. Since UDRP rules assign jurisdiction to the courts where the registrar and registrant are located, a respondents’ failure to comply with a UDRP decision will have to be appealed to the notoriously inefficient Indian courts, where the case could languish for years while the infringing domain name continues to be used by the respondent. Such practices imply that the operation of the Indian domain name dispute resolution system is of interest not only to domestic stakeholders, but also for the international administration of domain names. Though the UDRP has been in existence for more than 10 years, and the INDRP for seven, there have been few quantitative studies of the dispute resolution process. Most scholars have analyzed the policies from a legal point of view; among the few that included quantitative analysis were Mueller (2001), Kesan and Gallo (2005) and Simon (2012). They present data and analyses that call into question some aspects of the UDRP procedure. For example, the data back up the general impression (see Zainol, 2010) that the UDRP is biased against respondents, with a large majority of cases decided in favor of the complainants. Both Kesan and Gallo (2005) and Mueller (2001) found that, despite expectations that the UDRP would be implemented uniformly in all cases, there were significant differences in the “win rare” for complainants with different arbitrators — since the UDRP allows complainants to choose the arbitrators, this creates opportunities for “forum shopping.” (The Indian rules, under the INDRP, do not allow complainants to choose the arbitrator; instead, it lets the .IN registry assign the arbitrator.) Similarly, Simon (2012) found that the nationality of the arbitrators mattered, with U.S. arbitrators somewhat more likely to find in favor of respondents on fair use grounds. These findings demonstrate that statistical analyses can provide valuable insights into the operation of domain name dispute resolution procedures; it is therefore a shortcoming of the literature that more of these analyses have not been conducted. But if there are few analyses of the UDRP, there are still fewer of the Indian INDRP process — an exhaustive search of multiple databases revealed not a single quantitative analysis of INDRP cases in the almost seven years since the process was put in place. This paper aims to remedy this gap in the literature by conducting a quantitative analysis of all INDRP cases over the 2006-2011 period. Data on all 262 domain name cases arbitrated under the INDRP, from April 2006 (when the INDRP process came into effect) to December 2011, are available from the NIXI website. We record the type of complainant and respondent (individual, corporation, etc.); the nationality of the complainant and respondent (domestic, international); the decision (cancel registration, cancel and transfer to respondent, reject petition); the date of the decision; and the identity of the arbitrator, assigned from a panel of 15 arbitrators by the .IN registry. These data will be analyzed through cross-tabulations, along with tests of significance. Hypotheses include an expectation that complainants will be more successful than respondents in arbitration, as previously found for the UDRP by Zainol (2010), Simon (2012) and Mueller (2001); and that corporations (as complainants or respondents) will be more successful than other types of entities in securing favorable results. Though “forum shopping” is not possible under the INDRP since the complainants are not able to choose the arbitrator, we will also compare the “win rate” for complainants with different arbitrators, since this indicates how uniformly the rules are applied. References: Helfer, L. R., & Dinwoodie, G. B. (2001). Designing non-national systems: The case of the Uniform Domain Name Dispute Resolution Policy, William and Mary Law Review, 43, 141-273. Kesan, J. P., & Gallo, A. A. (2005). The market for private dispute resolution services – An empirical re-assessment of ICANN-UDRP performance. Michigan Telecommunications and Technology Law Review, 11, 285-380. Mueller, M. (2001). Rough justice: An analysis of ICANN’s Uniform Dispute Resolution Policy. Syracuse, NY: Convergence Center, Syracuse University School of Information Studies. O’Neill, S. (2009, February 15). UDRP hijacking: Avoiding an involuntary passage to India. INTA Bulletin, 64(4). Roy, A. (2012). Reflections on the uniform domain name dispute resolution policy as it enters its second decade. International Journal of Technology Policy and Law, 1(1), 15-24. Simon, D. A. (2012, forthcoming). An empirical analysis of fair use decisions under the Uniform Domain-Name Dispute Resolution Policy, Boston College Law Review, 53. Zainol, Z. A. (2010). The chronicles of electronic commerce: Reverse domain name hijacking under the Uniform Dispute Resolution Policy, 16(2), 233-242. Dr. Krishna Jayakar is an Associate Professor in the College of Communications at the Pennsylvania State University. He has published extensively in telecommunications policy, with a special focus on universal access. He serves on the board of editors of The Information Society journal and the Journal of Information Policy. His research has been supported by grants from AT&T, the Time Warner Research Program in Digital Communications and the Free Press Foundation. Prior to his academic career, Dr. Jayakar was a researcher at India’s Ministry of Information and Broadcasting, where he produced position papers and reports on media policy. Dr. Jayakar has an undergraduate degree in engineering and earned his MA and PhD in mass communications from Indiana University, Bloomington. Jieyu Chen is an undergraduate student in the College of Communications at the Pennsylvania State University majoring in Public Relations, with minors in Spanish and International Studies. Her academic interests include cross-cultural communications, public relations campaigns and social media.