Rather, a closer examination of the statistical data these dominant forums offer, along with data available to Go Daddy (the registrar in nearly a quarter of all UDRP filings), demonstrates that new efficiencies in the filing process, along with heightened initiative on the part of trademark holders, are also prevailing factors contributing to the boost in UDRP filings. Domain name providers should take note of these additional factors so that they can conceivably make adjustments to how they manage UDRP disputes.

http://wipo.int/amc/en/domains/statistics/cases.jsp

http://domains.adrforum.com/users/icann/resources/DomainNameDisputeResolution-FactSheet..pdf

http://domains.adrforum.com/newsroom.aspx?itemID=1636

Data Show that Newer Registrations are not the Subject of Filings. The percentage of gTLD growth decreased between 2006 and 2009, and only rose slightly in 2010 (see annex 2). However, measuring the length of registrations for names that were subject to disputes between January 2009 and December 2010 provides compelling data that newly registered names do not represent the majority of these filings.

If there was a huge swell in cybersquatting, we might expect to see these newer registrations as the subject of the more recent UDRP filings. However, according to Go Daddy’s records, this is simply not the case.  We can determine that it was not newer names that were the dominant subjects of that year’s arbitration filings.

In fact, in 2007, domain names registered with GoDaddy that were part of proceedings were registered approximately 680 days before the filing was made[2].  The average in 2008 rose slightly to 685 days. In 2009, days jumped to 750. Finally, the correlation between new registrations and new UDRP filings weakened even more in 2010, to nearly 870 days. In other words, despite an increase in both gTLD registrations and arbitration filings, the average time a subject domain name was active actually lengthened.

Since newer names do not seem to be the subject of these recent cases, there could be other meaningful reasons for this swell in filings. Based on the cases submitted to Go Daddy, improvement of the filing process itself and the more active role that trademark holders are playing in defending their marks both seem to have contributed to the hike in UDRP filings, as well.

http://www.zooknic.com/Domains/counts.html

http://www.hosterstats.com/DomainNameCounts2011.php

Annex 3: Visual comparison of Annexes 1 and 2.  Percentage growth of gTLD registrations and UDRP filings follow similar patterns until 2010.

Cheaper, Streamlined Process Possibly Accounts for an Increase in Filings. It is reasonable to attribute some of the recent spike in UDRP filings to the recent efficiencies that WIPO and other arbitration providers have launched within the last few years. These changes in the filing process support IP holders’desire for high-speed and low-cost solutions.

Take, for example, the implementation of the e-filing system.  In mid-December 2009, WIPO started allowing e-filing of complaints[3].  Subsequently, they reported a 13% increase in filing rates between December 2009 and February 2010.

Similarly, NAF amended its Supplement Rules in March 2010 to require that all complaints are filed via e-mail, no longer requiring paper copies of the complaint[4].  These changes, saving time and money, inevitably encourage IP holders and their representatives to take action on more infringements.

Likewise, several consultation firms have expanded their businesses to provide simple, one-stop shopping for IP holders striving to challenge online infringers.

More Cybersquatters are Setting up Sites on Their Infringing Names.  The advice of some of these consultation firms may have been to lay low if the infringing domain name was not in use since it makes it more difficult to prove the UDRP’s element of “Evidence of Registration and Use in Bad Faith.”[5]  This could explain why the average length of registration for more recent filings is so high. Perhaps those names did not have any infringing material up on the site until more recently.

WIPO’s “Areas of Complainant Activity – Industry and Commerce”[6], which categorizes complainants by their industry, supports that the largest percentage of complainants for 2010 are associated with retail, fashion, and “other.”  Likewise, filings by complainants in the electronics field went up by 400% between 2009 and 2010. Grouped together, these are general and specific retail categories, categories where a consumer can expect to purchase something on an active site. 

With an  increase in online retail sales, both legitimate[7] and counterfeit[8] it seems that names registered a few years ago that may not have had anything on their site have now evolved into accessories for these online counterfeits. As a result, the concern for IP holders has become not just the infringing domain name but also the use of that name to propagate infringing material. 

Therefore, as a way to maintain the complainant’s own online commerce, filings may be multiplying as a result of the burgeoning use of domain names to sell counterfeit goods, providing a viable bad faith argument. 

Conversely, between 2005 and 2008, pharmaceutical brands were more readily active in the UDRP process.  However, they have slowed in recent years, possibly due to increased awareness of illegal online pharmacies.  Go Daddy began shutting down illegal online pharmacies, regardless of where they are hosted, in November 2008[9].  Swift actions on the part of the responsible registrars that make it less critical for pharmaceutical companies to pursue infringing domain names if they are able to get assistance from a helpful registrar to immediately shut down the website.

While non-pharmaceutical online retailers cannot take advantage of these same means to get a website suspended, the UDRP provides a quicker and less expensive resolution than the court system for other types of retailers who are attempting to control counterfeiting of their brands.

Trademark Holders are Becoming Serious about Their Web Presence. Related to the increase of counterfeit goods on the web, we suggest that the increase in filings is not just a consequence of cybersquatting, but possibly a fresh movement among trademark holders, both big and small, to defend their marks.

Likewise, drawing from WIPO’s data, one telling sign that trademark holders are taking more aggressive steps to protect their brand is how the category for “Other” in the type of complaint is seeing more activity.

The “Areas of Complainant Activity – Industry and Commerce” data listed only 40 decisions involving “Others” between 2000 and 2006, as opposed to 655 decisions between 2007 and 2010.  This is relevant because the trademarks being violated in the “Others” category are, for the most part, not as well-known as they are in alternative categories.  

In other words, more brand owners are looking out for their marks, whether they represent a famous enterprise or not. More than ever, trademark holders recognize the arbitration option as a more cost-effective plan, rather than having to go through the slower and more expensive court system.

In conclusion, the UDRP process is more prominent than ever before. However, it would be misleading to solely blame cybersquatting for the sudden increase in UDRP filings. Although there is little doubt that the ongoing practice of cybersquatting factors into the tide of arbitration cases, the ease of filing, along with more vigilance on the part of IP holders, undoubtedly influenced the measurable increase in cases.