Law clerk may have written much of your domain dispute.
Being a domain name arbitrator under UDRP for National Arbitration Forum doesn’t pay particularly well. That is, if you are an arbitrator who takes your job seriously.
But National Arbitration Forum provides a shortcut to arbitrators, allowing them to “cut-and-paste” their way to quick decisions.
Here’s how it works. When an arbitrator receives a new UDRP domain name case, (s)he is also provided with a memo written by a National Arbitration Forum law clerk. This memo outlines the main issues under each of the three elements of a case (confusing similarity, rights or legitimate interests, registration and use in bad faith). For each element, it provides a case both for the complainant and the respondent.
For example, it may suggest that if the arbitrator is in favor of the complainant on confusing similarity, possible support for the reasoning is X, Y, and Z and vice versa.
It’s true that many judges have law clerks who assist them with research. But under the structure of domain name arbitration, this practice creates a number of problems.
A couple of the problems are technical issues. First, the process defies the logical legal process of the arbitrator considering all of the facts and then coming to a conclusion on his or her own. Second, it may violate rule 15 (a) of the UDRP rules:
Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.
National Arbitration Forum is extending beyond the statements and documents submitted, providing an additional document for consideration by the arbitration panel.
But the biggest problem is that the law clerk memos enable “cut-and-paste” arbitrators who quickly decide and write cases based on what the law clerk provides to them. For each aspect of UDRP, they merely cut and paste what the law clerk wrote for their particular view, put it in the correct format, and turn it in. And, depending on whom you talk to, sometimes the law clerks get it wrong.
This may explain why you see very similar logic and explanations across multiple UDRPs by different arbitrators. It may also explain why you see National Arbitration Forum cases with empty references and lack of logical flow.
National Arbitration Forum did not respond to repeated requests for comment on this story.
Next time you lose a UDRP, consider that you may have been a victim of a cut-and-paste arbitrator.