- the number of neutral arbitrators on the panel;
- the precedential value of earlier UDRP decisions;
- the possibility that a defending party's settlement offer can be used as evidence of bad faith in registering a domain name; and
- the type of relief requested.
Certain neutral arbitrators are already developing reputations as being more likely to have a broad view of ICANN's policy and to be more lenient to complainants, while others are known to be more strict in their interpretations and more likely to favor defendants. Because parties normally have little control over the selection of arbitrators, unless a panel of three is selected, many practitioners are recommending that their clients choose a three-member arbitrator panel to ensure that they have some say in the selection of the neutral arbitrator. However, some cases involving three arbitrators have resulted in divided panels with dissenting opinions, which may make it easier to challenge a decision in court. (See our June 2, 2000 Internet Alert on the Weber-Stephen dispute.)
UDRP decisions may have precedential value in future cases. Approximately 25% of the decisions rendered to date refer back to prior UDRP decisions, but the vast majority of decisions do not rely - at least explicitly - on previous decisions under the UDRP.
Finally, parties should carefully review their filings in any UDRP proceeding to ensure that appropriate relief is requested. Papers that seek "transfer or cancellation" may result merely in cancellation of the defendant's domain name, returning it to general availability where it may be acquired by another third party within days or hours.
No doubt additional lessons will be learned over the next few months, as more UDRP decisions are decided. Since these dispute resolution procedures are still in their infancy, both claimants and defending parties should consider current trends in UDRP decisions before initiating a new UDRP domain name dispute or responding to one initiated against them.