EdPhillips

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Again, a decision that may be of interest to those on this board, given that there was some comment about the first instance decision.

ghd.co.uk (Appeal) - DRS 03078

domaingenius

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Hmm "page not found"

DG

EdPhillips

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Not sure why that link didn't work, sorry. Follow the links from this page:
http://www.nominet.org.uk/disputes/drs/appeals/

rob

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GHD.co.uk decision overturned for the lazy who cant read

Classic bit:
Is there a Nominet 'abuse' ranking scale?!

domaingenius

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Yes interesting. So please may I ask Ed, do DRS decisions ,especially Appeals which have of course considered the facts twice, act as a type of precedent in future DRS's , and do they have to be taken into account in making future decisions , or can it be totally disregarded in future decisions ??.

DG

invincible

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Each Independent Expert will form their decision differently. Some will examine past decisions and appeals. Some won't. I believe it is entirely up to an expert how they come to their decision, although the policy is there as guidance for what constitutes both rights and abusive registration.

EdPhillips

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DRS Policy 10(c) - Appeal decisions will not have precedent value, but will be of persuasive value to Experts in future decisions.

domaingenius

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So in future DRS's the expert does not have to take into account any other previous DRS's or Appeals from decisions ?. If that is the case it kind of works against good sense in that lets say the appeals panel has said that XYZ does not amount to abusive registration ,the next DRS expert or Appeals panel can say yes XYZ does amount to abusive registration . It surely is contrary to good sense to not allow build up of precedents so people know where they stand ?

DG

meinthecorner

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I agree about the precedents set by previous DRS's. It doesn't really make much sense and possibly causes the confusion about the varying results of the DRS procedure.

EdPhillips

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The civil courts use a strict system of precedent, so that, for example, the Court of Appeal decision in the One in a Million case binds all High Court judges in domain name cases - even if the judge involved thinks that perhaps the specific facts of the case suggest otherwise, unless that judge can say that the case is so radically different to the others that he doesn't have to follow it.

The DRS Appeals are designed to be pursuasive, but not binding so that experts retain freedom to decide each case entirely on the facts. You will note, if you look through cases, that experts will refer to and follow appeal decisions - possibly the most quoted is the appeal decision in seiko-shop.co.uk with their phrase that the rights test is "not a particularly high threshold test".

Individual DRS decisions are not binding, but can be referred to - and the recent "webservers.co.uk" decision, which is mentioned on another thread here, is a good example of an expert referring to other first instance decisions for inspiration, if I recall correctly.

Finally, I should point out that I personally believe that if matters are decided in appeals, it is helpful for them to be put into the policy/procedure for the longer term, to reduce the need for parties to read past decisions. You will note that the 'no coming back' rule from the bravissimo.co.uk appeal now appears in the appeal rules in the policy/procedure, and that approach is likely to continue.