My Year-End UDRP Roundup

by John Berryhill, a Prominent UDRP Lawyer, has successfully handled hundreds of contested UDRP cases since the beginning of UDRP. (Originally published at NamePros.com on November 25, 2024)

It’s hard to believe another year is winding down. I usually wait a while to post this, but it is unlikely I’ll be seeing another decision in a UDRP (or other dispute policy) defense this year. I have one ccTLD case on the burner, but the Response will not be due until mid-December, and so the decision won’t be issued until next year.

There seem to be some folks who don’t know what I do for a living. Representing parties in domain disputes is part of it. Obviously, nobody is making a living off of defending eleven cases a year. The fact of the matter is that, as the UDRP matures, the proportion of “interesting” or defensible cases has decreased dramatically. Of UDRP complaints that are denied, an increasing proportion of them are found to be abusive. I ran the numbers on those trends for a presentation at the @ICA meeting last year, and will probably update them after the numbers are in for this year.

In general, so far this year at WIPO and NAF, there have been 6,554 decisions. Of those, the complaint was denied in 286 of them, for a Respondent win rate of around 4.4%. Obviously, not many UDRP cases are filed in which the Complainant does not believe they have a good case, so you wouldn’t expect the Respondent win rate to be significantly high. But, that’s the relevant statistical backdrop for the list of decisions issued this year in UDRP cases I defended:

The ones in bold were deemed Reverse Domain Hi-Jacking by the panel.

A good way to learn about the kinds of things that go on in UDRP proceedings is to invest some time in reading some decisions, to find out what kinds of situations added up to a win or a loss.

Of the cases above, credible .com, torso .com, pitstop .com and malo .com probably aren’t all that interesting to domain investors, because they involved established businesses, a domain name registered back in the 1990’s, and a personal name. Those kinds of situations aren’t all that interesting. The other cases are more “domainer-oriented”.

Two really weird ones were because.com and augis.com. In both of those cases, the complainants were the previous registrant of the domain names, but they had let the registrations lapse. Stranger still, the same attorney represented the complainants in both of those cases. But, having lost the first one, she didn’t mention the fact that the complainant was the former registrant in the second one. The panelist wasn’t very impressed.

The absolute hands-down most fun case was young.com. It took a lot of gumption for the complainant to claim that they had an exclusive right in the word “young” and to argue that there could be no other reason for registering that domain name. What was also interesting about that one was that my client ran the complaint through an AI system and asked it to outline a response which turned out to be a pretty accurate summary of the most effective arguments. Then, he ran both the complaint and the response through AI, and asked it to predict the outcome of the dispute, and the AI pretty much nailed the reasons for the decision. That experiment is discussed here.

It’s worth mentioning that what wins cases are the facts. What helps is an ability to communicate those facts, and relevant principles, to a UDRP panel in a way that makes sense to them. I can’t change the facts, but I do understand how the panelists make their decisions and how to explain the facts in a way that fits what they need to see in order to decide the case.

I’m not always sure what is the expectation, but sometimes someone will come to me with a case that they really have zero chance of winning, and the best recommendation I can make is that they go for a voluntary transfer of the domain name. There is a procedure for doing that in the UDRP, and I charge a very low fee for taking cases through that procedure since it is not well-understood by people who file these things, and they aren’t going to trust someone who doesn’t inspire a lot of confidence. Yes, it is possible to screw up a voluntary transfer under UDRP Rule 17.

I’ve discussed in other threads why it is worth getting hopeless cases resolved without a decision. Just very recently, I was in touch with someone who had a case that they might win or they might lose, depending on how the panel assesses their credibility. The problem was that this person has already allowed a bunch of cases to go to default transfer decisions, which is what tilts the table against them in their most recent case. It’s just not a good idea to rack those things up, and then show up one day with “This isn’t like all those other cases.”

So, I don’t think the list reflects any special ability to do magic or win cases that couldn’t be won without me. What I do believe it reflects is a decent ability to evaluate cases that are winnable and cases that aren’t. Once in a long while, sure, things don’t work out, and a case that could go either way does go the other way. Nobody wins them all, but this year has worked out okay.