A person wishing to complain about another party's ownership of
a domain name has a choice between suing in court and following
Nominet's Dispute Resolution Service (DRS).
Court actions can be slow and expensive, though successful
litigants can win damages and sometimes their legal costs from the
losing party. Lawsuits are generally based on the laws of 'passing
off' and trade marks.
In contrast, Nominet's Dispute Resolution Service is a more
popular forum that follows its own rulebook, the DRS Policy &
Procedure. (It is similar but not identical to ICANN's Uniform Domain Name Dispute
Resolution Policy, or UDRP, the rulebook followed in disputes
over .com, .net, .org and many other domains. UDRP disputes are
handled by any of four approved
providers, the best known of which is the World Intellectual
Property Organisation.)
In a .uk domain name dispute, a form can be completed at
Nominet's site to make a complaint. Nominet says it receives about
90 such complaints a month. Nominet sends the form to the
registrant of the name in dispute. If a response is made, a
mediation process begins. Parties agree to settle their disputes at
this stage in 60% of cases, according to Nominet, which does not
charge for the process.
If the case fails to settle at mitigation or if no response is
made to the complaint, the complainant can pay £750 to bring the
case before an appointed expert who will consider the arguments and
issue a binding decision. The losing party has a right to appeal
and nothing stops either party taking the matter before a court. An
expert cannot award damages or demand that a cybersquatter pays the
cost of a successful complaint.
In a consultation that opened on 17th November and ends on 16th
February 2007, Nominet suggests changing its current Policy.
Under the Policy, a name will be transferred if a Complainant shows
rights in a name or mark that is identical or similar to the domain
name and shows that the domain name, in the hands of the
Respondent, is an 'abusive registration'. There is no suggestion to
change that test, but the Policy's guidance that follows is up for
review.
The consultation suggests changing the Policy to make clear that
evidence of reselling a domain name or pay-per-click revenue on the
website of a disputed domain is not necessarily evidence of abusive
registration. Nor is ownership of a large portfolio of domain
names; and nor is evidence of reselling domain names.
It also includes options for changing the fee structure and
introducing a system where the losing party pays for the decision.
That could deter cybersquatting – where a domain name is registered
for profit, in many cases through the display of ads. At present
there is little deterrent for would-be cybersquatters because a
trade mark owner is more likely to approach Nominet than a court.
There are no suggestions for how such an change would be enforced
against a losing party.
Nominet says it will analyse the results of the consultation –
which are being made available on its site as they come in – and it
will then propose a revised policy and procedure.
