And so it begins....

foz · Jul 11, 2014

Sean said:
Your legal counsel would be the best to advice on that. If it is possible, it would be interesting to see how Nominet would view the sending of a legal letter to a complainant by a defendant stating that they view their actions as being without grounds and malicious and that they intend to bring a civil suit against. Could it be construed as intimidation?

I want to recoup my legal bills against complainants that do not pay for an Expert decision. The barrier to bring complaints are very weak. IMO all complaints lodged should be with legal counsel. The half baked complaints I see have no abusive element to them.

foz · Jul 11, 2014

Sean said:
However, like I say, would Nominet or the expert view that as intimidation if it was brought up during the case.

Wish to do it after the fact.

The process is flawed with the DRS.

Everyone submits their arguments, then and only then does the complainant decide to pay or not.

If the complainant walks, time and money has gone up in smoke.

foz · Jul 11, 2014

Sean said:
Just thinking about it, perhaps (again if it is possible) Nominet could make it clear during the submission process that if a case failed it may be considered malicious and that civil proceedings may be brought against them by the respondent?

To bring proceedings to recoup £1,500 would be overkill.

Anyone been down this path:

https://www.gov.uk/make-court-claim-for-money/overview

tifosi · Jul 11, 2014

I brought these issues up in my response to the DRS consultation months ago. With .uk this is only going to get much worse and requires immediate attention by Nominet to review the situation.

Nothing was/is done in the case of bringing spurious / malicious DRS against a domain. My argument was that there should be a pre-acceptance vetting in each case. Simply filling in a form and paying £10 is NOT acceptable considering the legal / time costs in further action along the drs route.

Their argument is that mediation can remove the need for an expert decision, but the cost to the respondant is before this, not after, unless an appeal is required.

In fact they made it easier in some respects with the £200 no response clauses. This imo should be the initial outlay for a drs at which point the case may be accepted or dismissed - before the respondant is even involved. The case of the complainant should be set out at this point.

Having being at the wrong end of a spurious claim I know what it cost me to defend it - even though I did it myself - in lost clients and time.. £x,xxx.

The current DRS is again not fit for purpose in the current - as Nominet put it - changing domain market.

S

foz · Jul 11, 2014

Sean said:
You have a point but equally not all cases that are brought are without merit and Nominet are probably keen for there to be no financial barrier to access, certainly for the initial access. It doesn't help you I know but to me, on balance that seems to be the least worse option

Education maybe, the lay retards that can't read should be turned away.

foz · Jul 11, 2014

tifosi said:
I brought these issues up in my response to the DRS consultation months ago. With .uk this is only going to get much worse and requires immediate attention by Nominet to review the situation.

Nothing was/is done in the case of bringing spurious / malicious DRS against a domain. My argument was that there should be a pre-acceptance vetting in each case. Simply filling in a form and paying £10 is NOT acceptable considering the legal / time costs in further action along the drs route.

Their argument is that mediation can remove the need for an expert decision, but the cost to the respondant is before this, not after, unless an appeal is required.

In fact they made it easier in some respects with the £200 no response clauses. This imo should be the initial outlay for a drs at which point the case may be accepted or dismissed - before the respondant is even involved. The case of the complainant should be set out at this point.

Having being at the wrong end of a spurious claim I know what it cost me to defend it - even though I did it myself - in lost clients and time.. £x,xxx.

The current DRS is again not fit for purpose in the current - as Nominet put it - changing domain market.

S

Didn't spot the consult. For sure .uk is here and this is the worst I've seen in all my years.

No £10, it's FREE!

Mediation. Someone that has offered £50 (prior to complaint) all of a sudden in mediation they will pay aftermarket value price plus legal fees. NO CHANCE. They had no intention of paying £750 for the Expert all along.

The expert fee should be paid upfront with the complaint. That will rid us of the try-it-on brigade.

monaghan · Jul 11, 2014

I can see both sides of this argument, yes the professional domainer should have slush fund for fighting legal cases, however, perhaps there should be an option to file a summary response for mediation and then a full detailed response should it go to the expert so there's no need to engage a lawyer until necessary. This way, you don't waste cash and time on lawyers for those who are just trying it on, but you still have the option to engage assistance if it is a "proper" DRS case.

tifosi · Jul 11, 2014

I'm not saying that the expert fee should be paid up front, the steps from respondent's reply to expert decision are imo right.

But Nominet should expect a significant increase in DRS cases due to .uk and that the current procedure is now not fit for purpose. Nothing to do with domain investment etc, this is for all current registrants... we don't want / need another cheese domain fiasco.

The initial steps to post a DRS need immediate review. Many DRS's since the consultation are done so through the £200 summary decision pathway, or at least in the hope of this.

I would like to see an enhancement of the submit -> accept/not accept to include a basic submission review process - which may have an initial cost - to not just test the semantics of the submission but basic case validity.

tifosi · Jul 11, 2014

The why & when of these being sent out is imo the issue:

"In sending these letters out, Nominet do not consider the merits of the document in question, simply the length. The chairman’s letter sent to the complainant in this case read as follows:"

You're right, that experts cost money. But a DRS review panel, in the same mould as the old PAB may be a possibility.

We have contacted [the Respondent] and offered them £200, but they have refused and asked for £3,000, which we find totally unacceptable. This is the reason why we go to Nominet to file a Complaint.

Righteous indignation should never be a reason to register a DRS.

If anything the complaint submission process should explicitly contain clauses for the complainant to state and disclose if any contact with the registrant (personal or company) has been made. Failure to do so would invalidate the complaint.

That this letter appears to be sent AT the expert stage is a bit anachronistic imo.

foz · Jul 11, 2014

They send this out of vague complaints;

Dear Mr X,

We have received your complaint.

We have not yet sent the complaint to the registrant of the disputed domain name, and are inviting you to review your case.

We do this when we receive short complaints, or complaints which have no supporting evidence for the Abusive Registration element of the dispute.

If you would like to add more information and evidence to you current complaint you can email it to me and I can add it for you. If you wish to withdraw your complaint and submit a new one, please let me know.

If I do not hear back from you by X I will send this complaint to the registrant.

To help you assess your complaint, we recommend that you read the following documents:

The Complaint guidance questions and the Example Complaint form will give you some ideas about what information and evidence you can include.
The DRS Experts Overview - this is a report made by the panel of adjudicators and summarises their opinions on common issues relating to the DRS policy and procedure.
The DRS Policy and Procedure - in particular look through section 3 of the DRS Policy for factors on how it could be an abusive registration.
All the previous DRS Expert decisions are published on our website, you could use the 'Full text' search function to look for similar cases.

The Complaint

You are the "Complainant", and the burden of proof lies with you. This means that in order to be successful you must prove two points on the balance of probabilities.

You must prove that you have:
1) Rights in a name or mark that is identical or similar to the domain name(s) AND
2) the domain name(s), in the hands of the Respondent, is an Abusive Registration.

These are known as the 'Rights' and the 'Abuse' test.

You have (up to) 5,000 words in total to state your case and prove the 'Rights' and the 'Abuse' tests. You are allowed to attach exhibits and evidence in addition to the 5,000 words.

It is vital that you refer to evidence and then provide it with your complaint. Stating "and this can be provided on request" or "see our website" will not be enough.

If you have any questions about the DRS process, please do contact us.

Kind regards,
X
Dispute Resolution Service
Legal Department

Instead of:

If I do not hear back from you by X I will send this complaint to the registrant.

Why not:

If I do not hear back from you by X I will not send this complaint to the registrant.

grantw · Jul 11, 2014

The last one I had was pretty much one paragraph which basically said 'I need this domain to expand my business' !!!

The complainant got a response from Nominet as above regarding the crapness of their complaint which referenced a previous DRS case that had been dismissed due to the lack of information/evidence from the complainant (it was slightly more detailed than mine).

I just referenced the above case in my short response and stated that if that case was dismissed I don't see how this one couldn't be!

Could have been a risk on my part but the fee wasn't paid and it went no further. Could be a handy one to reference in responses in these sorts of cases though: D00004635

Grant

cannybagotudor · Jul 13, 2014

foz said:
They send this out of vague complaints;

Instead of:

If I do not hear back from you by X I will send this complaint to the registrant.

Why not:

If I do not hear back from you by X I will not send this complaint to the registrant.