A professor from Harvard has just released a 48 page study he conducted on UDRP decision involving “Fair Use” of a trademarked term.
You can download the study here (pdf)
The study entitled, An Empirical Analysis of Fair Use Decisions under the Uniform Domain-Name Dispute-Resolution Policy is authored by David A. Simon a Harvard Law School professor.
“For over ten years, the Uniform Domain-Name Dispute-Resolution Policy (UDRP) has resolved nearly 20,000 domain-name disputes brought before the World Intellectual Property Organization (WIPO), a United Nations organization that arbitrates UDRP disputes.
“Although several empirical studies have analyzed various aspects of the UDRP, none has specifically examined this fair use defense.”
“This study does what others have not.”
“It analyzes the fair use defense in decisions before WIPO.
“This study found that arbitrator and respondent nationality influence the success of a respondent’s fair use claim to a statistically significant degree. ”
“Specifically, respondents from the United States are more likely than those from other countries to succeed on a fair use defense.”
“Additionally, arbitrators from the United States are more likely than those from other countries to find that a respondent’s use of a domain name was fair.”
“This means that, under the UDRP, respondents from the United States enjoy greater speech protections than those from other countries, and that arbitrators from the United States are more sympathetic to speech interests than arbitrators from other countries.”
“To improve the UDRP, I propose two revisions. First, ICANN should adopt a choice of law provision stating that the law of the respondent’s home country governs fair use disputes. ”
“Second, ICANN should implement a panel assignment provision in fair use cases that requires arbitrators to share the nationalities of the litigants. ”
Its an interesting read so check it out in full.
I’m not a professor at Havard. I’m an academic fellow for the summer.
But thanks for the post!
It’s just coincidence that U.S.-based respondents succeed in fair use because many domain-trademark disputes involving such occur from there.