Dispute Resolution Service
26 March 2001
Nominet DRS Review
I have read the proposed Policy and Procedure documents and also the Responses posted to date. I have some specific comments to make followed by some more general observations where I wish to concur or oppose comments already posted.
CHANGE: Nominet should ALWAYS send notification by registered first class post PLUS optionally in addition any of the other ways. Registered first class post to the name recorded in your register will provide reliable proof of delivery - the other ways do not offer proof of delivery for such an important document.
CHANGE: You really can't assume delivery by these unreliable means and should request acknowledgement of communications or use a reliable system with in built proof of delivery like registered or recorded post as above.
CHANGE: The time for the 15days to run should be from the date the respondent acknowledged reciept of the copy of the complaint as in 2a above and shows why it should be sent by registered first class post and not any of the other unreliable unconfirmed methods.
It is quite feasible for a personal registrant or sole trader to be out of the country for longer than the 15 day time allowed and be totally unaware of the dispute in progress. This would be unfair and unproductive.
6) Reply by the Complainant
CHANGE: If the complainant submits a reply to the Respondent's response then the Respondent should be entitled to a copy of this and be entitled to offer a reply to it otherwise he can't challenge any information provided in this second opportunity the complainant has in his 1000 word reply.
CHANGE: The panel of three experts should be appointed on rotation basis as in section 8
3) Evidence of registration or use in bad faith
COMMENT: I think you have this just right especially your policy 'to prove bad faith is not the same as absence of good faith'.
Specifically - Non Use as a web site should NOT be sufficient evidence of registration in bad faith - some people (Network Solutions is one) refer to a domain name as a 'Web Address' these days - there are other genuine valid uses!
7a) Notification and Publication
If publication goes ahead then either only Nominet's decision should be published or else both parties's submissions should be published in full - Nominet should not exercise editorial control.
8(b) Exclusion of Liability
I fully agree with Sebastien Lahtinen in the matter
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.
From reading the previous submissions I could not do better than to cite again the comments of Sebastien Lahtinen:-
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.
I would also strongly DISAGREE the comment of Ed Brown
'Specifically bad faith should include: The registering of a domain name without actively using that domain name.'
COMMENT: Registration in bad faith is capably covered in your proposed sections 3ai A,B,C. There are many valid reasons for non use including registering prior to launching a new venture.
These comments are my own personal comments and do not reflect those of any company to which I may be associated.