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Consultation Responses




The key tenets of the new Dispute Resolution Procedure were put out to public consultation from 31 January -31 March 2001. The consultation was aimed at different stakeholders, including members of Nominet, trademark holders, intellectual property lawyers and small and medium sized enterprises.

During the consultation period, Nominet invited written responses that were published on the web site, and spoke at a number of meetings in order to promote debate on the issues. The principle areas that drew comments are summarised here:

  1. What does "bad faith" mean, and does it involve a moral judgement on the registrant's behaviour?
  2. What does "rights" mean?
  3. Why impose a criminal standard of proof?
  4. What is the scope of the defence for tribute and criticism sites?
  5. Do appeal decisions have precedent value?
  6. Who can appeal, and how?
  7. "Three strikes and you're out" is a disproportionate punishment for complainants
  8. What is the criteria for choosing experts?

The final policy and procedure of the new DRS address these issues in the following ways:

  1. The concept of "bad faith" is replaced with a defined term: abusive registration. It is hoped that this will make it clear that no moral condemnation is implied by a finding against a registrant (ref: Definitions).
  2. Rights includes, but is not limited to, rights enforceable at English law. Complainants will be unable to assert rights in a name or mark that is exclusively descriptive of the complainant's business (Ref: Definitions).
  3. The criminal standard of proof previously set out in clause 2b of the Policy has been removed, but parties are encouraged to use Nominet's model submissions which will guide them through the evidence required by the Policy and Procedure (Ref: clause 2c of the Policy).
  4. The scope of the tribute/criticism site defence has been modified (Ref: clause 4b of the Policy)
  5. Appeal decisions do not have precedent value, but will be of persuasive value to Experts in future decisions (Ref: clause 9c of the Policy)
  6. Either party can appeal, and can ask for the dispute to be examined on the facts or on procedural grounds (Ref: clause 9a of the Policy). Nominet can also refer questions to the appeal panel, but any such determination will not affect any decision previously made under the DRS (Ref: clause 9b of the Policy).
  7. Three strikes and you're out is limited in two ways: in order to be debarred from the service, a complainant must be found to have used the policy in bad faith on 3 occasions within a 2 year period, and the ban will be for a period of two years.
  8. Nominet is advertising in the national press and in trade journals, inviting applications from those interested in joining our expert panel. A copy of the advertisement can be viewed at http://www.nominet.org.uk/nominet/drs-panel.html. Prospective panellists who are short-listed will be asked to complete a mock written decision and will be invited to attend a brief assessment/training session.