Dispute Resolution Service

Comments

9 February 2001

Sebastien Lahtinen
NetConnex Ltd.

Dispute Resolution Service Procedure ("Procedure")

2.(a)(i) ADD
The complaint should always be sent to the respondent by post - Preferably registered post. Copies could be sent by other means.

3.(b) COMMENT
Requesting a hard copy is essential to prevent time - wasters.

3.(b)(ix) & 5.(c)(v) QUESTION
What is the effect of providing false information? If there is no recourse, would an affidavit not be more appropriate?

14.(a) ADD or clarify 15.(c) to include:
Refusal to participate in "in person hearings" should not be construed against a respondent provided any information requested is made available by other means.

17. (b) QUESTION
On what basis will Nominet make a decision on whether or not to publish a decision made by an expert? This should be clarified.

18. (a) QUESTION
"by a panel of three Experts appointed by us at our sole discretion" - Why can these not be taken in turn as in for decisions?

21. (a) QUESTION
Should the fee of £750+VAT not be paid before mediation even begins as a deposit against the complainant to ensure they are willing to take this matter to a decision and not waste time?

22. (a) CHANGE
When Nominet intends to make a decision (whether directly or via an expert appointed by it), it should not exclude liability for negligence. As far as I understand this, "deliberate wrongdoing" does not cover this.

23. (a) QUESTION
Who must approve any amendments to the policy? PAB/CoM?

Dispute Resolution Service Policy ("Policy")

3. (a) ADD
Following from the point made by a Nameshop representative at the meeting of the 31/01/01, a provision should be added that 'non-use' of a domain name does not constitute 'bad faith'.

4. (b) COMMENT
This clause seems to suggest that if one uses a domain name for "tribute to or criticism" as opposed to just 'holding' a domain name, this is 'fair use'. Yet, by using a domain name, one may also be infringing trademark laws - There may be a small conflict?

5. (a) COMMENT
"We will not reveal details of such negotiations to any third parties…" - Not publishing information for domains in mediation stages is good. This encourages more complainants and respondents to resolve their conflict earlier.

7. (a) COMMENT
Whilst it is useful to be able to look at preceding decisions (indeed this may be vital if 'precedence' determines future decisions), there may be reasons by either/both parties do not wish to publicise this. It may be a good idea to include a provision stating the circumstances where the decisions are not published (e.g. by mutual consent of both the respondent and the complainant).

7. (a) REMOVE
"in our sole discretion we decide to edit parts of the Decision" - It would be unfair to one or both parties if Nominet exercises editorial control over a decision. If the decision is published, it should be published in its entirety.

8. (a) CHANGE
My understanding of 'deliberate wrongdoing' does not include negligence - When Nominet makes a decision as to the rights of domain name registrants, they should be held liable for negligence.

8. (b) REMOVE
When Nominet takes the decision away from the courts, it should accept defending such a decision in the courts. Whilst the respondent may use the legal system to reverse the decision, they may incur substantial legal costs as a result of Nominet's actions - In this case they ought to have the right to name Nominet as a party to a lawsuit.

11. COMMENT
Whilst it is necessary to prevent a respondent from transferring a registration of a domain name to another party during a dispute, this can be used by some parties to disrupt business (e.g. after a sale by a bone fide auction or sale with multiple interested parties, one of which will invoke the procedure if they are not the recipient). Some consideration ought to be given to this point.

11 (b) CHANGE
There should be nothing preventing a registrant from changing tags/nameservers ("ISP") at any time during a dispute, provided they remain the 'registrant' of the name. This can be used to disrupt business - There should be no need to obtain the complainant's consent.

12. (a) QUESTION
Who will approve modifications to the policy? PAB/CoM?

Additional questions/comments:

Contact details: Does the recipient receive contact details for the complainant? This is in my opinion required in order to take legal action against them if appropriate.

Three - party disputes (question originally by Steve Dyer in meeting on 31/01/01): What happens in the case that Company A registers the domain name in question, then sells it to Company B for a high price, and Company C claims rights to this name - What is considered "out of pocket expenses" with respect to what a 'reasonable' amount Company B may request from Company C to transfer the name.

Repeated complaints: There is a problem where a person is in control of many companies, and is able to use these separate identities to overcome the "three strikes and you're out" rule. How will this be dealt with? Will there be a link to a law firm who consistently abuses this system?

Selection of 'experts': The panel of experts should be elected by the membership or by the PAB/CoM.

I am very concerned by the act of Nominet stepping the boundary from setting the standard (with Courts enforcing the law) into making decision (which do not necessarily follow statute and common law) as to who has the right to a given domain name - Whether this is done by Nominet or an 'independent expert' appointed by Nominet, this step is a very worrying one.

In my view, this system could only benefit the small business targeting other small businesses who wishes to challenge a domain name registration without the High Court expense that many larger companies can afford.

I do not believe that a 'Judge Judy' approach to domain name disputes is appropriate. Whilst mediation should be strongly encouraged, I am concerned over the fairness of decisions by experts, and particularly with the indemnity that Nominet seeks over its actions.

Nominet has wished to remain outside disputes by not making decisions to the legitimacy of a registration. The courts are there for a purpose - To enforce the law. This should in my opinion not be handled by Nominet or any persons or bodies appointed by them.