retired_member6

It would be a different expert so wouldn't matter, if it was the same one then they could have a merry go round as they wouldn't be able to backtrack on the inane rubbish they wrote beforehand without handing back everybody's money.

Edit: and domain.

grandin

....handing back everybody's money.

That is certainly minimum Nominet should do!!!

Are they selling an illgeal item...A domain name is named prior to contract...I would therefore return it...its was never fit for the purpose...get your money back

Lee

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Ellis

It makes a mockery of the first come first served basis Nominet are always on about.

The whois for mercer.co.uk shows it was regged by IMO in 2004 -

If this 2 bit recruitment consultants that nobodys ever heard of registered mercer.com in 1992, you'd have thought they'd have come in much earlier for this name.

Or maybe they've been waiting for a better chance of winning the DRS.

Another "expert" with blood on his hands

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Alex

tifosi

Having read the DRS a few points of view to yet again another DRS with a dubious outcome.

The expert seems to have really been overwed by the international business interests if the extensive initial history of the mercer group. In reality they have rights but that is limited to being a company with the same name as the domain, and in having trademarks in the certain area of expertise. In itself this is NO right to own the registration to the uk domain name, which is by Nominets own policy on a first come first served basis. That the current registrant has no direct relationship to the name... which is a common british surname! is NOT relevent.

The complainant has summarised 2 totally different issues. 1 rights to the domain, and rights of ownership of registration. As stated above part 2 is based solely on a first come first served basis. That exterts also make this invalid assumption is invalid logic.

Has the complainant had prior contact with the respondent. Has the complainant tried to pass off themselves in the sector, or compromised the trademarks? NO. Has the respondent registered the domain with the intent of actively selling it to the complainant or their competitors? NO. Is this registration abusive as defined by policy3a(i)(ii)(iii). Clearly NO.

And 3(ii) & 3(iii) clearly not relevent.

So how is this an abusive registration?

Again a recognised and accepted practice. I REALLY REALLY wish that the DRS 'validation' procedure involved not only whether its under the 2000 works and has all the necessary documentation, but that there is also a pre-processing checklist for basic policy fullfilment.

It's interesting that the DRS dispute brochure wording says Now this is an issue which REALLY needs to be explained fully at the PAB etc meetings. If Nominet operate on a f-c-f-s basis then that is legitimate reason. You shouldn't have to explain any current or future use, and a parked or dormant domain should not be detrimental to the rights of registration.

Moving on: Now this is big business in full flow. Why is an international company moving into the UK sector have an automatic right to the .uk domain name? It doesn't. Mercer were clearly in the wrong in demanding retrospective registration rights. This is an issue which the PAB need to iterate strongly. Otherwise this will happen again and again, and more frrequently. In past discussions on this board we have indicated this and Nominet promised this to be clearly defined on the website drs notes.

Again a clear misinterpretation of the 'blocking' definition. This is the proactive registration with full and explicit knowledge of the complainants company with the full intention to deny the complainant the registration rights to the domain.
And again domain sales and domain resales business is a recognised and established and accepted practice both for the .uk and all other major tld's and that domains have an intrinsic business value greatly in excess of the out-of-pocket transaction value.

What??


Ok moving on to the 'expert decision'.

Policy 3a(i)(a) is crucial.
From the expert:Deeply disturbing. The expert has clearly made 2 assumptions and misjudgements.
i. That the respondent must have known about the complainant pre-registration and that they registsered the domain name primarily with the intent to sell to the complainant or a competitor of the complaiant. Clearly the expert on the basis of the evidence provided can NOT make this decision. NO NO NO. This is a subjective leap of judgement which has no place in a drs, as has the expert doing their own research based on incorrect usage of search engine results.

ii. That having no current plans to develop or develop the domain is evidence of abuse.

The expert clearly states that 3(a)(1)(c) has NOT been proven then states that [quote] MERCER has a high profile in the business and financial community. It follows that this has probably attracted visitors to the Domain Name website thereby resulting in a profit to the Respondent with each click on the related Google links, thereby taking unfair advantage of the Complainant’s Rights.[\QUOTE]

The expert assumes that the primary use of the word 'mercer' is as a descriptor of business and financial services, igoring the root of the word and the countless other defined uses of it. AND that the respondent is making advantage of the complainant by placing adverts on the site:

The fact thaat:
1.The adverts have NO relation to the sectors of the complainant. They advertise geneology,and that;
2.Parking of the domain is and has been clearly demonstrated as proof of policy 4(a)(ii)

Is this the experts 'opinion' now coming out?

The policy states that the complainant has to PROVE rights and abuse. There has been an increasing trend towards the experts working off the principle that because a complainant has proved rights that the registrant has now to prove that they have legitimate rights. This is clearly NOT policy and is a trend that HAS TO STOP. This is a fundemental flaw in the drs workings that the PAB has to address and if necessary re-educate the experts.

The domain sales & resales business is established and accepted. This has to be clearly recognised by the PAB and so by extension the experts.

Domain parking and affiliate advertising are a recognised and accepted use of a domain. And that dormant and or no current development of the domain is NOT evidence to be used as abusive registration.
As a caveat to this adverts trading off the rights of the complainanty, excluding the generic sectors pertaining to the domain name, are to be avoided.

What does it take to become an 'expert' maybe I should put my name forward

Stephen

grandin

I disagree slightly with stephen.

The mark mercer is a surname and company/business name(s)....there are many 'rights' holders linked to this name.

However its not generic in the sense its a common word/term.

The question is... did the respondent intend to use the name for email etc... or did he just buy it to sell to one of these 'rights' holders? The expert (in my opnion) came to the conclusion that the respondent took advantage of 'rights' holders. The respondent gave no evidence to show that he intended to use the name for email, INSTEAD he set up ppc and added a for sale sign.

The confusion comes in the remedy. Just because the complaint complained does not give him unequivocal rights to the name...I personally think it should have been cancelled and made re-available on a first come first served basis.....BUT maybe the respondent should have been given an opportunity to honour what he said he wanted to do ie...email for many 'rights' holders........everyone makes mistakes even the Patent Office

Lee

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Ellis

IMO brilliant post Stephen.

Lee says - and makes a good point

"The confusion comes in the remedy. Just because the complaint complained does not give him unequivocal rights to the name...I personally think it should have been cancelled and made re-available on a first come first served basis..."

But according to the wording of this DRS, the only people who are allowed rights to this name are people called "Mercer", company's with "Mercer" in their trading name or entities with trademarks containing the word "Mercer".

So theoretically, who has the right to own smiths.co.uk?

Smiths Crisps
WH Smiths
An organisation thats spent (place your own figure) on catching dropping domain names and parks them
or
Anyone or business called Smith.

It's beyond me.

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Alex

retired_member11

...and if the current PAB does nothing?

The sanction is to vote them off one by one. A candidate wishing to be elected on this issue simply needs to publish a manifesto declaring the present DRS process faulty and in need of a revamp. Then we will see from the voting just how much of an issue DRS Decisions are to the electorate. Some on the PAB need removing generally due to their overly compliant attitudes.

What the DRS needs is oversight of Decisions vis-a-vis the wording of the Policy. Experts have to be told to go away and think again if they have clearly misinterpreted the wording. The wording is quite precise. Otherwise 'disrepute'.

grandin

Ellis, I asked Nominet whether it is ok to buy a rights name that you will use in a manner that helps many rights holders....Nominet wouldn't tell me...so I am left in the dark AGAIN....

Examples:-

yellow pages...google all do the same...make money out of rights holders...what does 118 500 do???......they run a directory of names and make money from it.............

TO NOMINET:-

WE ALL MAKE MISTAKES BUT YOU CAN'T TAKE AWAY A DOMAIN NAME UNTIL YOU EDUCATE US HOW TO ACT WITH IT........UNFAIR TO EXPECT TOO MUCH OF US WHEN THE PATENT OFFICE CAN'T ACCURATELY ASSESS RIGHTS...GIVE US A CHANCE TO MAKE GOOD ANY WRONG WHEN WE USE WHAT WE THINK IS A GENERIC DOMAIN NAME

Lee

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admin

Good discussion, nice post Stephen.

I own the .co.uk for my surname, the .COM is owned by a huge mining Company in Canada - what happen sif they decide they want to move into the UK market? Based on the Mercer decision I could well lose it...

Thank god there is nothing left worth mining in the UK

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tifosi

Part of the experts reasoning is that IMO didn't have rights to the domain because they don't have reason to have the name. You do.

Saying that, what about most of the surnames (and by relation placenames) in the uk. Tha vast majority are NOT owner by people with 'surname' rights. A lot are owned by cumulative registrants owning large numbers of them and providing information links. Is this a valid use of them. This case clearly goes against this!!

Ok so this DRS is not about a generic, but the above applies.