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UK domain name dispute rules could change

Rulebook 'out of date' - Nominet

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The rulebook used in most disputes over .uk domain names is out of date, according to Nominet, the .uk domain name registry. Its suggestions for revision include the introduction of a financial deterrent against cybersquatting.

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 per cent 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 a 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.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

Related links

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OUT-LAW's guide to Domain name disputes

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