mr rusti

Despite the concerns about Nominet's DRS policy. New Zealand Herald News Story. the NZ domain registry has decided to implement the wording of Nominet DRS policy, instead of UDRP, on the 1st June.

There is some curiosity as to why the NZ registry has considered it necessary to amend Nominet DRS by inserting an extra clause (clause 5.4).

Any ideas whether this clause is intended to correct a flaw in Nominet's DRS or is it just window dressing? If it is correcting a flaw, shouldn't Nominet be addressing this also?

EdPhillips

This clause is designed to deal with the fact that the DRS is new to them. It isn't relevant to the UK DRS which has been operational for a while.

For changes that might occur to the DRS, see the latest PAB meeting.

Ed.

olebean

Ed

Sorry but what a load of bolux, its a time limiter, we have them in english its has nothing to do with the DRS being new.......

E.g. In the UK if you are injury and its not of your making you can claim (if I recall) within six years of knowing that injury took place, if you dont claim you have to show good reason why not... The tim limitation isn't just limited to injury claims, there are a whole host of claims that can be time limited.....

I would suggest this is a fair policy, that the NZ have adopted and reflects legislation

Yes it is relevant to UK DRS

Beasty

I agree with Olebean - though it's 3 years for personal injury, 6 years for most torts or breaches of contract.

The NZ policy gives a complainant 3 years to make a complaint about something - otherwise time is up. If use changes - then the clock starts ticking again.

China has just introduced a 2 year time limit to its dispute system, along with other belt tightening as far as complainants are concerned.

http://www.managingip.com/default.as...45&LS=EMS66224

This approach defnintely brings more balance to things and - especially given that this type of system is intended to be "cheap and cheerful", it makes perfect sense to encourage genuine rights holders to take action in a timely fashion.

Jac

I can't see where the NZ policy gives a complainant 3 years to make the complaint? The clause referred to by "mr rusti" 5.4 reads:

In making their decision, the Expert shall not take into account any evidence of acts or omissions amounting to unfair registration or use which occurred more than three (3) years before the date of the Complaint.

Doesn't this just refer to not taking into account other "acts and omissions amounting to unfair registration or use which ocurred more than 3 years before"? The previous clause refers to the respondent's behaviour patterns in the previous 2 years; but clause 5.4 doesn't seem to imply there is any form of statute of limitations per se. IANAL, so maybe you can clarify that point for me?

I would respectfully suggest that China is not a good example to be expounding upon. It seems a tad incongruous to me that one can raise a domain name dispute at all when they can't even raise "human rights" on Google China.

Hold on to your braces, but I am inclined to agree with you on that point. Looking at it logically, there does seem to be an inequity in allowing people to come along at any time at all after an event and still claim rights they may not have previously had (or may not have previously realised they had to protect). Either way, it seems sensible to suggest that the onus is as much on the trademark holder to seek out infringements as it is on the domain name registrant to ensure they do not register a blatantly obvious infringement. So maybe there should indeed be a 'statute of limitations' on domain name disputes.

Regards
James Conaghan
[PAB Member]

Beasty

I'm not a NZ lawyer, but reading Clause 5 along the lines of the DRS:

NZ 5.1.1-5.1.5 - the Non-Exhaustive List of factors indicating "Unfair Registration" = roughly to DRS 3(a)(i)-3(a)(v) non-exhaustive list for "Abusive Registration"

NZ 5.2 - Failure to use not of itself evidence = DRS 3(b)

NZ 5.3 - Presumption following "3 strikes" rule = DRS 3(c)

NZ 5.4 has no equivalent in the DRS. It says that "the the Expert shall not take into account any evidence of acts or omissions amounting to unfair registration or use which occurred more than three (3) years before the date of the Complaint."

Now I read each sub-section 1 through 4 as seperate and independent. 5.4 says that (my emphasis added above) that any evidence that arose more than three years before the Complaint was filed must be ignored by the Expert. It says they "shall not" take it into account - so they have no discretion.

The absence of capitals for "unfair registration" is unfortunate - since it is a defined term that should either have capitals or should be avoided if that is not what was meant. However, referring to the defined term - it equates to "Abusive Registration" in the DRS - so anything that may have been Abusive/Unfair "shall not" be taken into account if it occured more than 3 years previously.

That means that the act of registraion - (i) of the two heads defined in both NZ procedure and the DRS - ceases to be live 3 years after the registration took place. Full stop - unless and until the domain is transferred.

Likewise any "use" made of the domain that pre-dates the Complaint by more than 3 years can not form part of a valid complaint. Query the issue of use that may be an ongoing tort - other e.g.s include false imprisonment, squatting on land - though I personally think that such an argument would be more suited to a Court than a DRS system.

So it seems to me that there is clear line in the sand being drawn by the NZ draftsmen - take action within 3 years of the act you are complaining about or lose your right to use the dispute system - though of course they may still have a right to go to Court. Ed was involved in the drafting, so he can (and no doubt will! )correct any mistakes I may have made.
We agree on China's human rights record. However what I sought to show was that the NZ clause is not alone and a major market has reviewed its complaints procedure and significantly restricted rights holders ability to make a claim outside the Court system.


A couple of other things that occured to me when taking a closer look at the Kiwi set-up. It seems to me that there is a distinction drawn between the registrars - who are commercial and compete with one another - and the entity that holds the registry - which in turn is seperate from the "political" body that represents .nz.

Also membership for an individual seems to cost about NZ$56 a year - which when I was last in NZ would amount to less than £20 a year.

Jac

I think I'll leave that to Ed too... if he cares to comment.

As I said in another thread, I think it is always prudent to offer advice that encompasses the differences. The differences in this specific case are evident; there are different classes of membership and they allow for different levels of involvement. Suffice to say the $56.25 you refer to allows for "individual membership" with very limited rights. The one that has the bells and whistles on it is $1,000 plus GST ($1125).

However, the wierd thing is, whilst there is loads of useful info listed, I can't find any reference to actual numbers of members.

Regards
James Conaghan
[PAB Member]

Beasty

I could not work out what - other than the number of "ordinary" memers the different classes of membership offered - save that the more expensive ones were for corpororates.

It seems to me that the Ordinary members get these rights:

Membership entitles you to vote at our AGM at which the Society Council members are elected and as an "Ordinary" member you will be eligible for nomination to stand for Council yourself or register interest to be accepted onto one of our many working groups or committees.

Perhaps a thought for Nominet would be to allow individual members - with limits on things that appeal to corporates such as registration fees - for a similar £20 a year or so. Then those who could not justify commercially a £500 first year cost, plus £100 per annum, could get involved in Nominet.

texidriver

FYI

ICANN Meetings in Wellington, New Zealand on March 29th, which discusses ......the removal of the name and contact information of the owner of a domain from whois information in what will be available to the public.


http://www.icann.org/meetings/wellin...so-29mar06.htm

mr rusti

Still no decisions published

http://dnc.org.nz/drs/index.php