Discussion in 'Domain Name Disputes' started by domaingenius, Nov 13, 2006.
What exactly constitutes bad faith under the DRS please ?.
Bad faith does not appear in the DRS - it is in the UDRP. If my memory serves me correctly, it was in the original draft of the DRS - but the IP rights owners lawyers lobbied succesfully to have it taken out as it would be more difficult to prove. It requires evidence of intent by the registrant, which unless volunteered is not that easy to obtain.
So in the DRS the required standard is the more "objective" "abusive registration" - a non exhaustive list of factors can be found here in Policy Paragraph 3.
For more than that, you need to look at various DRS Appeals and Decisions.
The DRS says 'registered in a manner that took unfair advantage of the complainants rights'
In my eyes thats registered in bad faith
Not really - you can take unfair advantage of someone's rights without that person having to prove that that was what you intended. If you have exhibited bad faith - that requires an element of intent on your part.
Unfortunately I can not find the consultation papers on the Nominet website - any idea where those have gone Ed? - but I from what I remeber that was a concern of the IP rights holders lawyer lobby. Otherwise, if there is no difference, why not go with the UDRP's "bad faith" definition?
If your assertions are right then answer this:-
Why do the experts when coming to a decision state things like 'the registrant knew of the complainant prior to registering the name'....if this has no bearing (which I doubt) then such a comment is misleading.
Surely the experts are addressing the issue over 'the manner' part of the this point. So to come to a conclusion that a certain manner is abusive
Name a manner of registering that is abusive under the contract but not a registration in bad faith? In this context they are the same???
What is the definition of bad faith?
How can you have abusive manner of registration thats not considered to be a registration in bad faith!!!
I suppose the short answer is that a bad faith registration is always likely to be an abusive registration - but it is possible for there to be an abusive registration without evidence of bad faith. You will find decisions which follow this logic.
Policy 3(a)(ii), (iv) and (v) need not involve bad faith; nor need any number of scenarios not covered by the non exhaustive list.
If you don't believe me Lee, ask Ed for the consultation on the point in 2001.
The issue that I am sure needs attention is the high platform that prevents new entrants to market. In other words, the DRS etc prevents diversity rather than stopping what it was originally designed to achieve (Cybersquatters) which I am yet unconvinced exist...
Unless the reason for the abuse is not stated in point 3 of the policy then it must be considered that you are knowingly being abusive, such abuse is always going to be considered as acting in bad faith.
Unless we have contracted without reading our 3 million word contract (the word count is my estimate)??
Lets not forget the GHD expert was one of a few experts who exercised the 'may' clause within the policy i.e. allowing him to move the rights date from the point of registration.
Here is a good question for you....What rights of use (proven in law) are established when you register a domain name? i.e what can you do with your domain name? And if not at the point of registration then when? When you think of the concept or when you put a thing on it called a website?
Nominet's definition 'the right to derive benefit of its use'....i say what use and when?
Not really - it is possible to adversely affect someone else's rights without intending to do so - you might be unaware (perhaps carelessly) - but if it is a "strict liability" test then you are still going to get done. Where - as in the UDRP - knowlege is part of the picture then the regsitrant has a better chance of resisting the claim.
Bear in mind also that the type of people who lobbied for this divergence (and others that favour the complainant in the DRS compared to the UDRP) are now the type of people who are independent "Experts". So a better question might be, who benefits from Nominet having it's own ADR system - rather than using the established services of WIPO etc. and the UDRP.
T W 2006
Separate names with a comma.