Advice wanted please

Hope someone might be able to help. I will keep this fairly brief so dont write life history. If someone receives a DRS and doesnt want to proceed with the DRS but take the matter to Court how is that done ?. I believe they have very good chance in Court under trade mark laws, but much less so under DRS rules,thus they want to take into Court. Anyone have any experience of this ?.

Thanks
K

 

I'd contact Nominet to find out what the procedure is in this case. I don't think that you can "choose" a court action instead of a DRS if someone starts a DRS against you.

 

Someone told me that you could issue a court procedure rather than wait for DRS ,or maybe have to wait for end of DRS and then take to Court ?. Must be someone here with some experience of these things ?.

K

 

See paragraph 20:

http://www.nominet.org.uk/disputes/drs/?contentId=5240

 

Thank you very much for that. One other thing though. Does anyone know exactly what to issue (i.e. injunction, etc ?). And please dont say "you must have a lawyer" as cannot afford it and will do myself. The only thing missing is that I dont know what the type of Court procedure to issue.

thanks
K

 

Must be a great domain name if your willing to risk open court and the cost's associated with it !

Not so sure about the DIY bit........in fact i'd advise getting your nut xray'd

Good luck.

 

Costs dont worry me no. As for DIY, I took 2 Malaysian co's to Court ,took 2 years and got trial listed. Lasted 2 days with them represented by barristers paying tens of thousands £. I won in UK Royal Courts, and then enforced Judgment in Malaysia.

K

 

reading above it sounds like you don't need advice.

Although surprised you couldn't find paragraph 20 on nominets dispute procedure page.

 

Interesting. Were those two Malaysian companies trading as UK entities?

 

Are you possibly being influenced by your previous success - as the main motivation for going down the same road ?

I ask because of your two references to "cost" of the action appear contradictory

 

Not at all. I also obtained Judgment against a Dutch company in 2003. Just today infact I heard that bailiff in holland has frozen some money in bank accounts of the debtor and all this along with costs and interest over 8 years will be winging its way to me soon. I have valid trade mark for the domain, I have limited company etc so where's the risk ?

Now what would help is if there is anyone here who has taken similar case to Court instead of or after DRS (or even one you know of so I can contact them perhaps).

K

 

When you pique the interest of other members, it's natural for them to ask questions. I'd be very interested to know how you had a judgment enforced in Malaysia from the UK. I lived there for ten years. Was it The Administration of Justice Act 1920?

 

Yes I believe you are correct there ,as is 15 + years ago now and im getting old my memory on that escapes but thats rings a bell. I issued in UK, got leave to serve on defendant in malaysia, sent to process server in Malaysia, they instructed UK law firm, I got Judgement .I then registered the Judgment in Malaysia via law firm there and then bailiffs issued a winding up petition and they coughed up. Friend of mine lives in Malaysia now, (not then) and says he loves the Country and wont be back. Moved all his company there lock stock and barrels

K

 

You should read this page regarding pre-action protocol:
http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_pre-action_conduct.htm

The court will expect you to have tried to reach a settlement or agreement prior to commencing litigation. This may be an exchange of letters. You will also need to warn the other side in writing of your intention to take legal action. Once that's done and assuming you cannot reach an agreement with the other side, you need to decide which court you want to file your case in - which town and which type of court (unlikely to be the high court unless its £0000s at stake - the MoJ site has the limits each court can deal with, small claims, county etc.).

You will be asking the court to decide something, award you something or prevent the other side doing something, so you'll be asking for a court order (an instruction) or you will be seeking a consent order (an out of court settlement, but which could be enforced by the court if necessary).

However, the court will expect you to have tried every avenue possible to resolve the matter outside of court, including mediation and arbitration. It will be frowned upon if you completely dismiss the DRS process as that would seem like the most appropriate method of resolving a domain dispute.

The whole point of things like DRS is to keep things out of court and let the courts deal with stuff no-one else can resolve.

If you own the trademark, registered or not, and can prove it to a court, why are you fearful of the DRS process?

 

Yes I agree that DRS clearly is intended as a quick way to resolve matters ,but it is not for the Courts benefit so much as Nominet's and the Complainants. Agreed, the pre action protocol is a must and I intend to fully comply with that and have already written to them without prejudice save as to costs but no reply.

Of course ordinarily and under trade mark laws the opponents would not stand a chance. ie. they could not have the TM set aside/cancelled. We all know though that DRS is hardly ever fair to the respondents and is geared towards allowing big business to take from the small man.I intend taking this to Court but will see how the DRS goes firstly. How long after the DRS decision do I get though to issue the legal proceedings and stop them transferring the domain ?.

K

 

You can appeal the DRS if you lose and want to throw a few thousand at it. Not sure on maximum permitted timescale, but that will probably be on the Nominet website's legal section.

I'm guessing this is relating to the registered trademark/domain which the email address in your forum profile is using?

 

There's the rub, it is cheaper, for me, to go to Court as can do myself with less fees than Nominet charge for appeals. And No.

K

 

If you lose at the first decision with Nominet then it's a fixed fee to appeal. If you lose in court I imagine you'll get a more substantial costs order. Present a strong case to the Nominet expert and there is no reason why you shouldn't hold on to the domain.

This has got me intrigued to find out what it is. Care to share or shall I do some more hunting?

Edit: Was a bit of a silly guess from me at the profile domain, it's not even a .uk

 

Out of 36 appeal decisions, 16 DRSs have been overturned. Bearing in mind that the appeal is fundamentally about the manner of the original decision (rather than to allow for copious amounts of aditional evidence to be submitted), woohoo could consider that the DRS has a 44% unreliability outcome.

 

How many DRS' have there been which haven't been appealed though?

I do understand your logic but the sample size will be relatively small in comparison with all decisions made. For that reason there may be an element of truth although it's probably not an entirely representative figure.