UDRP VS. CDRP
The Key Differences between the Uniform Dispute Resolution Policy & CIRA Domain Name Dispute Resolution Policy
By Eric Macramalla
While the CIRA Domain Name Dispute Resolution Policy ("CDRP") was modelled after the Uniform Dispute Resolution Policy ("UDRP"), there are significant differences between the two policies. Accordingly, while UDRP decisions may provide some guidance regarding the interpretation of the CDRP, UDRP decisions must be read with caution given the substantial differences between the UDRP and the CDRP.
The key differences between the policies are as follows:
- CDRP has adopted specific language in keeping with the Canadian Trade-marks Act and Canadian trade-mark law. For example, the definition of what constitutes trade-mark use is similar to "use" as defined in the Trade-marks Act;
- The complainant trade-mark owner ("Complainant") must be a Canadian resident; if not, it must be the owner of a corresponding Canadian trade-mark registration (a trade-mark application or common law trade-mark rights is not sufficient);
- The CDRP protects trade names not yet elevated to trade-mark status, while the UDRP does not;
- Under the CDRP, the Complainant's trade-mark rights must predate the domain name registration;
- Under the CDRP, the three (3) bad faith factors are exhaustive; under the UDRP the four (4) bad faith factors are not;
- The CDRP only requires that bad faith registration be shown, while the UDRP requires that bad faith registration and use be established (however, it is a well-established principle under the UDRP that a showing of bad faith registration is sufficient for a finding of bad faith);
- The list of factors that may be relied upon to demonstrate a legitimate interest in a domain name under the CDRP are exhaustive; this is not the case under the UDRP;
- If the Registrant proves on a balance of probabilities that the Complaint was commenced for the purpose of attempting, unfairly and without colour of right, to cancel or to obtain a transfer of the registration, the Panel may order the Complainant to pay the Registrant an amount of up to $5,000.00 Cdn to defray the Registrant's costs in preparing and filing material in the proceeding;
- Disputes under the CDRP are resolved by a three-member panel, which may be converted to a single-member panel only if the Registrant does not file a Response;
- Irrespective of the number of Panellists assigned to a case, the entire cost of a CDRP proceeding is borne by the Complainant; this is not the case under the UDRP;
- A CDRP decision will be implemented within approximately sixty (60) days from the date of the decision, compared to ten (10) days under the UDRP.