Nominet is the company which acts as the internet registry for all .uk domain names, and also manages and maintains this vast database.
There are currently over 7 million domain names registered with Nominet, and the company receives 140,000 applications for new domain name registrations every month. Given the huge number of domain names already registered, and the rapid rate at which they continue to be registered, it is no surprise that disputes arise. The number of disputes is relatively low at about 1 in every 2,000 registrations, but this number is likely to rise as more businesses turn to the internet and the pool of potential domain names shrinks further.
This articles looks at the Dispute Resolutions Service (DRS) Nominet offer and provides insight into domain name disputes by highlighting some of the common disputes in this area and suggests ways to avoid them.
The DRS acts as a cheaper and quicker alternative to the courts. The vast majority of disputes dealt with by the DRS are resolved within 3 months and cost a fraction of what would be spent if the dispute went to court. It has therefore proved a popular method by which to resolve disputes, and the parties always have the option of going to court midway through DRS proceedings or at the end of DRS proceedings.
The DRS procedure
The DRS procedure is based on a binding policy which is published on Nominet’s website.
Stage 1: The Complaint
The complainant submits a form via the Nominet website alleging that there has been an “abusive registration”. This complaint is then communicated to the respondent (who is the registrant of the domain name) who has an opportunity to respond to the points raised by the complainant. There is no fee charged for making a complaint or responding to one.
Stage 2: Mediation
Assuming that the registrant responded, the matter is now dealt with by a mediator. The mediator is a Nominet employee who liaises with both parties over the phone in an attempt to reach a settlement. The mediation usually takes two weeks. The majority of disputes are settled at this stage, with a decision to transfer the domain name to the complainant or maintain the original registration. There are no fees charged for using the Nominet mediator; however, the settlement will often involve money.
Stage 3: Expert Decision
If the dispute is not resolved at mediation, the claimant has the option of instructing a Nominet approved expert. The Nominet approved experts are lawyers and IT professionals. The expert does not see what occurred in the mediation, but considers the strength of the parties position based upon the evidence previously submitted. At this stage there is no opportunity for the parties to make further submissions to the expert. The expert’s fees of £750 are met by the complainant.
If the registrant did not reply to the original complaint, the complainant can apply for a summary decision. This costs the complainant £200. There is no guarantee that, just because the registrant did not respond, the expert will decide in the complainant’s favour. If the complainant does not obtain a summary decision, the registration remains as it was prior to the dispute.
The expert can decide to transfer the domain name to the complainant or take no action and leave the registration as it is.
Stage 4: Appeal
The appeal process is only available to disputes which have been decided by an expert. The appeal is heard by a panel of three experts and costs the party who makes the appeal £3,000.
Stage 5: Publication
The expert’s decision, and the appeal decision if there was an appeal, is published on Nominet’s website for public viewing.
What constitutes an “abusive registration”?
In order to gain a successful transfer of the domain name the complainant needs to show that there has been an abusive registration. The following is a list of the most common abusive registrations Nominet deal with:
1. Registering domain names for the sole purpose of selling or renting the domain name to the complainant at a fee that is greater than it would cost to establish the domain name is likely to be deemed an abusive registration.
2. Registering the business name of a competitor prevents that competitor from taking advantage of the goodwill it has generated in the name. Even if the website is not in use this can still be deemed an abusive registration (“blocking registration”).
3. Using the name of a well-known company or a trademark as a domain name usually results in a complaint and subsequent finding of abusive registration if there is a likelihood of confusion over who owns and operates the domain name.
Outcomes of the DRS
The vast majority of disputes that are decided by the DRS result in a transfer of the domain name to the complainant. Why should so many disputes end in a decision to transfer the domain name?
1. Nominet produce clear DRS guidelines, resulting in complainants only bringing disputes which they believe they have strong cases for.
2. Nominet are keen to be seen as upholding the integrity of the .uk domain name (it is in their commercial interest to do so, otherwise businesses could switch to .com and other alternatives) and therefore has a policy which promotes tough standards.
3. Nominet are keen to uphold their rules and not be viewed as a weak registry. This is to reinforce confidence in the .uk domain name market and maintain the lucrative level of monthly registrations.
4. If a complainant can see, part way through lodging a complaint, that their case is weak they have the ability to withdraw the complaint and incur no costs. This could mean that only those complainants with the strongest of cases progress fully through the DRS. Those who abandon their complaint are not registered in the Nominet DRS result statistics, therefore giving the impression that the level of transfers is much higher than what it probably is in practice.
It is often in the complainant’s interest to resolve the dispute at mediation, because at this stage no fees would have been paid. Conversely, it is in the registrants interest to drag the dispute through to the expert stage because it is the complainant that will need to meet these fees – this might even be sufficient to dissuade the complainant from continuing the dispute.