Nominet is consulting on a plan to streamline the dispute
resolution process so that unopposed disputes are automatically
resolved in favour of the party claiming a right to the domain
name. This is designed to help legitimate rights holders to reclaim
domain names held by cybersquatters, who rarely defend against such
claims.
But while the new plan could save someone trying to claim a name
£550, it will not save them the more significant expense of
preparing a full case, with all the management time and legal bills
that that is likely to involve.
The move is designed to help brand holders to cope with the
rocketing problems of cybersquatters and domainers who register
thousands of domains at a time and generally do not oppose attempts
by rights holders to take the domain names back.
In addition to management time, Nominet's process costs £750 –
and significantly more if a brand holder instructs a law firm to
prepare the claim. Disputes expert David Barker of Pinsent Masons,
the law firm behind OUT-LAW.COM, said that the process can be
arduous.
"The process is a good thing because it is quicker than a court
and is inexpensive by comparison," said Barker. "The problem is
that you still have to fill out a quite substantial document
setting out your rights and explaining that the other party doesn't
have rights. In general it is advisable to get a lawyer's help to
do it."
Domain name squatters sometimes register hundreds or thousands
of names at a time which are similar to business trade marks and
earn money from advertising displayed to visitors. When .uk names
are involved, the practice gives grounds for a complaint under
Nominet's Dispute Resolution Service (DRS) policy.
Cybersquatters typically do not respond to challenges made under
the Nominet Policy because it is not economic to do so. There is no
deterrent because they do not pay any damages if they lose a
dispute. However, few businesses can afford the time, energy or
fees to claim all of the names to which they are entitled.
Nominet's new proposal is only a partial solution to these
problems, said Barker. It allows a claim to be lodged for £10 and,
if it is unopposed, the name will transfer for a further £200
rather than the £750 fee payable if the claim has to be ruled on by
an expert.
Crucially, though, the initial £10 claim must be accompanied by
a full application setting out the claimant's case. Then, if
the claim is opposed, whatever documents you originally send are
used in the full dispute resolution process.
"The Nominet DRS is supposed to be relatively layman friendly,
but of course quite a few parties in DRS disputes are
represented," a Nominet spokesman told OUT-LAW. "But we are not
actually proposing that you don't have to present a case initially
– you'd still have to file your complaint in full including
your arguments and evidence as to Rights and Abusive
Registration."
"Provided a defence in response is filed you'd then proceed as
usual through our mediation and ultimately expert decision stages,"
said the spokesman.
If there is no defence, the details of a claim are never read or
considered; but most claimants will not risk making an abridged
claim, according to Barker.
"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.
Editor's note: A story appeared on OUT-LAW
yesterday under the headline 'Nominet plan could trip legit
domain name holders, warns expert'. That story focused on the
need for additional safeguards in Nominet's plan. When it was
written, our interpretation of Nominet's consultation was that
its fast-track procedure would require only a summary claim.
Nominet contacted OUT-LAW yesterday to clarify that a complaint
must be submitted in full "including your arguments and evidence as
to Rights and Abusive Registration." We think that is the wrong
approach and a more significant issue than the need for safeguards.
Accordingly we removed that story and replaced it with this one,
which we hope will provoke some debate on this subject.
