A domain name registrar in Mumbai, India has discovered a great way to market its business to cybersquatters. Here is how it works.
Under ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP), someone who files a UDRP proceeding agrees to “submit, with respect to any challenges to a decision in the administrative proceeding canceling or transferring the domain name, to the jurisdiction of the courts in at least one specified Mutual Jurisdiction.” Mutual Jurisdiction basically means that that if you decide to challenge the UDRP decision in court, you have to do so in one of two jurisdictions: either the jurisdiction where the registrar’s principal office is located or the jurisdiction where the listed address of the existing registrant is located. See UDRP Rules Definitions.
So how has this Mumbai registrar taken advantage of the Mutual Jurisdiction provision? In India, lawsuits can be extended for substantial periods of time – maybe even up to 10 years or more. The Mumbai registrar says it will set up straw registrants to hold domains in India for cybersquatters. The Mumbai registrar will also file lawsuits on behalf of the cybersquatters in India to appeal UDRP proceedings. What this means is that cybersquatters can delay transfer of domains names they have registered in bad faith for up to 10 years or more by forcing the proceeding into Indian courts. During the delay period the cybersquatter continues to profit from use of the domain.
Some have suggested that this can be avoided by first filing an action in the United States under the Anticybersquatting Consumer Protection Act (ACPA) instead of filing a UDRP proceeding. See, e.g., article by Deborah Wilcox et al. Such a suit would be brought under in rem jurisdiction provisions of the ACPA. While this may seem like a simple solution, in rem jurisdiction is not always as straight forward as it appears. See, e.g., article by Evan Brown. Nonetheless, it remains a viable option to consider.