Since late last year, independent newspaper Occupied Chicago Tribune (OCT) has been reporting and commenting on the Occupy movement. One glance at the website makes it very clear that OCT is not affiliated with the “original” Chicago Tribuneindeed, OCT is often critical of the paper and its coverage. This hasn’t stopped the Tribune from claiming OCT infringes its trademarks, and launching proceedings that could cause OCT to lose its domain name.

We’re confident a US court would recognize that the allegations are baseless, but the dispute will not take place in a formal court of law. Instead, the Tribune is using a rapid response process set up under the Uniform Domain Name Dispute Resolution Policy (UDRP), an international arbitration agreement to which all domain name registrars (and their customers) must agree. The UDRP is supposed to offer an alternative to litigation in local courts to settle trademark or cybersquatting complaints, yet UDRP arbitrators don’t have to respect “local laws”—such as fair use and the First Amendmentand proceedings tend to skew in favor of the large trademark holders that are known repeat players.

Moreover, the rapid-fire decision making has been abused by parties seeking to silence expressive content and speech. Once the complaint is sent to Occupied Chicago Tribune, they are given twenty days to read it, analyze the merits, and respond. From there, responses are filed, a panel is appointed, and a decision is rendered within 60 days. Combined, these aspects create variables that are intended to speed up the process and allow for fact-specific determinations, but can often create excessive burdens on First Amendment protected activities.

Despite these problems, there is some good news: several arbitrators have concluded that US law should apply to the analysis when both parties are located in the US. OCT filed their response last week refuting the claims and await the appointment of panelists. Let’s hope that happens here and that OCT’s legitimate free speech of Occupied Chicago Tribune is not curtailed.

Update: Six days after an arbitration panelist was appointed, the panelist ruled in favor of Occupied Chicago Tribune. In his opinion, the panelist stated that it is unreasonable to expect the two papers to be confusingly similar to people because the Occupy movement is a "well known" and distinguishable "international protest movement with a wide range of goals." Fortunately, the arbitration went well for Occupied Chicago Tribune, but the sheer fact that such a case could be brought forth, that valuable resources wasted by both parties, and that there was a potential for the transfer of OCT's domain to the Chicago Tribune are all indicative of problems within the UDRP system.