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Lawyers attack Nominet plan for domain name disputes

Saves a little time and money, but not enough

"At best, this just saves you £550 on the fees, but that is not the main cost," he said. "That comes in the legal fees associated with making a full application or, if you do it yourself, the management time."

"You only get one chance, and if you're a large organisation you are not going to risk losing the claim, so you will prepare a full application. That's time-consuming. This is a missed opportunity to provide a real fast-track alternative to the current process," he said.

"What we'd really like to see is a system that lets the brand owner make a summary claim," he said. "If undefended, the name is transferred, subject to safeguards. If defended, the claimant then prepares a full claim and the registrant has an opportunity to make a full defence."

Pinsent Masons is responding to Nominet's consultation with a suggestion that the fast-track procedure is limited to holders of registered trade marks. A claimant would provide only a trade mark number as evidence of rights in a disputed name and state that the domain name's registration was an abusive registration, without supporting evidence. If the registrant indicates an intention to defend, the claimant must then file a full claim, together with evidence. The registrant is then given an opportunity to defend the claim.

There are other potential problems with the current proposal, though, and Nominet recognises that in order for it to be successful there must be measures put in place to protect legitimate domain name holders from 'reverse hijacking' by unscrupulous operators.

Barker said that there was one missing safeguard related to the fact that many people do not keep their contact details up to date. Legitimate domain names could be taken from their owners because out of date contact details meant the owner had not received notification of a claim, he said.

"If you look at the way that abusive domain names are registered, the domainers always look at the systems and find ways to exploit the processes," he said. "You might find that a rogue operator instigates the process for legitimately held domains. If the contact details are not kept up to date, you risk a legitimate domain holder losing the address."

"I'm concerned that charging only £10 up front will encourage this sort of behaviour," he added. "That could lead to reverse hijacking with unscrupulous people making lots of speculative claims. If the process is going to cost at least £200 whatever the outcome, the entry fee should be £200."

In theory, a contractual condition of registering any .uk domain name is that contact details must be kept up to date. But Barker said that the condition is generally not enforced, so registrants have never considered out-of-date details a significant risk. "Nominet's plan would increase that risk significantly," said Barker.

He said that in order to make sure that a domain holder is made aware of the changes, the policy should be changed on a 'rolling' basis, so that it only comes into effect once a person renews their registration of a domain.

"That is when the change can be drawn to the attention of the holder of the domain name, so that they then know how important it is to keep their contact details up to date," he said. "It's the only time when you can be sure that you have a registrant's attention."

The consultation closes on 3rd October 2007.

Copyright © 2007, OUT-LAW.com

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

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