Nominet says court decision validates its dispute resolution service.
Nominet is celebrating a decision by the High Court (a senior court in England) upholding a decision reached in its Dispute Resolution Service for the domain Emirates.co.uk.
In its opinion, the court ruled:
Looking at the scheme as a whole, it was apparently intended to create a self-contained dispute resolution mechanism which is closely regulated, cheap, quick and (apparently) efficient. To add a parallel route of applying to court (which I fear would not always attract all those adjectives) would be inimical to the apparent intention of the parties.
Nominet views this as “validation” of its dispute resolution service.
Notice how this differs from what UDRP is (supposed to be): a regulated, cheap, quick and efficient way to settle surefire cybersquatting complaints. If a party wants to take a case subject to UDRP to court, most of the time the UDRP panel will just drop the case.
Of course, Nominet’s process differs from UDRP and even includes an appeal process.
I’m not giving an opinion on which model is better, but I think it’s interesting to see the difference in how these two similar programs operate.
Nic says
Slightly off topic, but, if I may….here is a story idea for DNW.
Germany.
denic.de does not subscribe to UDRP. They too have their own system.
Yet, nowhere have I seen a good overview, in English, of their system. One that outlines the fundamental differences to UDRP.
For example I am always aware that in the UK and Australia you cannot rely on “registration *and* use” to keep your names safe because the UK and Australia are “registration *or* use” regimes. Huge difference.
I have never found a good article or reference to what the story is with .de. I am sure it exists, in German, but that doesn’t help .de name holders that are English speakers.
You would think Sedo would do it, but they wont for whatever reason.
Is it only me that is interested I wonder?
Paul says
I read the decision that this case was not about the merits of the underlying dispute, just if the courts can rehear a DRS dispute.
The court would not rehear a dispute brought under the DRS, because the court does not have any means to determine “abusive registration”. The DRS does not preclude cases being brought under actual law – but the case would need to be made in law rather than DRS policy.
Complainants can still use trademark/passing off law to file against a respondent. The issue seems to still be exactly how a respondent can frame a case in law to seek redress from a DRS decision.
The US has its ACPA which closely matches the UDRP in its purpose and construction, and under which a respondent can seek a declaration, but the route under UK law does not seem clear (if one even exists).
Paul Keating says
Paul,
“The court would not rehear a dispute brought under the DRS, because the court does not have any means to determine “abusive registration”
This is not true. In this case the court concluded that the references in the NomiNet policy (using words identical to the UDRP) found that “dispute” did not mean the entirety of the dispute regarding control of the domain.
Rather, the court held that “dispute” was limited to “other” claims such as the TM rights of the complainant, etc. Thus, the court concluded 2 things:
1. There was no established cause of action in the UK for seeking a de novo review (a do over) of the ADR proceeding, AND,
2. The general powers granted to the courts (in equity – read fairness) were not to be made available because of the interpretation given by the court as noted above relative to the “dispute”.
In all, IMO this is a weak decision. The judge was obviously familiar with some aspects of the workings of domains. However, he failed to consider any of the following:
a. That to register a .co.uk domain at all you were forced into the scheme. This leads to considerations of contracts of adhesion particularly in today’s age and given that NomiNet is the sole source of .co.uk domains;
b. a “right” under the Nominet DRS system is ANY right ANYWHERE.
c. There was no consideration of EU directives (governing law in the UK because notwithstanding that the English refer to “Europe” as “being over there”, they are a Member State and EU directives control the day, just as treaties do in the US.
d. There was no consideration for treaties such as TRIPPS, etc, which require common application of laws.
e. There was no consideration given that while the complainant held the right to “appeal” a pro-registrant decision – for example by filing an infringement or passing-off claim, no such right apparently existed for the respondent. This impacts the ancient but fundamental issue in contract law of parity.
f. I could go on and on…..
The largest issue – the elephant behind the curtain if you like – is that the DRS, like the UDRP, was drafted by a committee of people who – no offense – did not even contemplate in the slightest way the ramifications of what they were drafting. The essentially punted and we all have been left to clean up the mess.
The problem with the “mess” is that one side – complainants – are largely big revenue entities who treat the expense of a DRS as if it were a part of their marketing program budget. On the other hand, we have the respondents who rarely see the economics of challenging the playing field which is far from level.
We have all be led to believe that “you can opt out” and that the DRS/UDRP/ETC does not foreclose your right to litigate. It is all well and good to claim this. It is disingenuous to make such a claim when the large portion of the world (outside the US) a losing respondent is left with no cause of action at all upon which to base a claim for relief.
Paul Keating says
And, by the way, law.es handles most UDRPs for a fixed price which tends to max out at EUROS5,000 and this includes the filing fees if a 3-member panel is requested.
Kai Recke says
@ Nic:
Please note that there is no similar DRS at DENIC. Although they have a Dispute procedure it only means that you can show DENIC your (supposedly)better rights (like a personal name or TM) and they will place a hold on the domain for one year.
But its then still up to the national courts to render a decision.
As a domain owner you don’t even get a notification about a Dispute/ the hold that is put on your domain.
Kai Recke says
Some English FAQ to help you:
http://www.denic.de/en/faq-single/373/248.html?cHash=f3a52a6fda2b3d91968b98af34404b50
http://www.denic.de/en/faq-single/375/248.html?cHash=36791a37818d3d10debf8d33d52aced7
Graham Schreiber says
If your an international business; conflicted with a .co.uk and have been doing ‘active’ business, in the UK … DON’T BOTHER WITH NOMINET.
I did the whole process with them, they … the ‘expert” … ignored my presented details, so I had a senior Lawyer there do a review; and, they wouldn’t overturn the view of their ‘expert’
Thanks be to Visa “charge backs” I retrieved my $1,500.00CDN.
In fairness to them, they knew they messed up; and didn’t contest the charge back.
My complaint references are … D00009747 & D00010360 and if they’ll make the files public, enjoy the reading.
All in all, they waisted my time, 10 months, but if your a British Company infringing {knowingly} another, they’ve got your back!
Cheers, Graham.