Champions for DRS change

[vjroberts]

Of all the candidates seeking election to the Nominet Policy Advisory Board, only 2 candidates mention DRS in their Nominet PAB Election statements and what they would strive to change. The others make no mention of any desire to change DRS in their statements.

The two are :

Richard Martin

• Campaigning for changes to the current DRS procedure to protect generic domain names, and those registered before a similar trademark
• Campaigning for DRS cases with poor complaints (for example not showing rights, or failing to provide documentation) to be rejected

James Conaghan

• DRS Financial implications (eg: £3,000 appeal fee).

 

[domaingenius]

Of all the candidates seeking election to the Nominet Policy Advisory Board, only 2 candidates mention DRS in their Nominet PAB Election statements and what they would strive to change. The others make no mention of any desire to change DRS in their statements.

The two are :

Richard Martin

• Campaigning for changes to the current DRS procedure to protect generic domain names, and those registered before a similar trademark
• Campaigning for DRS cases with poor complaints (for example not showing rights, or failing to provide documentation) to be rejected

James Conaghan

• DRS Financial implications (eg: £3,000 appeal fee).

What we need to see is a DRS that follows more closely the law regarding trademarks and passing off. One has to think "what is the purpose of the DRS" and I can only see that the answer would be something along lines "because it gives a cheap and easy route" for complainants to get the domain names. It is not actually cheap for those on the receiving end, and most of the complainants use DRS rather than the law/court system because they know that DRS is so far away from case law that they could not get the domain through the Courts because it would not constitute an infringment.

The DRS either needs to be revamped or done away with totally. WHY do Nominet feel they have to run a DRS, why do they not simply tell complainants to go to Court ???. Indeed that fact that the DRS is so far
away from Case Law *may* constitute some kind of unfairness to respondents ?. If for example a domain holder was using a name in breach of TM laws and/or passing off then the complainant could easily take that person to Court. Why should DRS make the hurdle so much lower to allow complainants to more easily grab domains from respondents ?. It maybe that the DRS is an unfair contract term or similar in that it deliberately goes against settled TM law.

DG

 

[EdPhillips]

What we need to see is a DRS that follows more closely the law regarding trademarks and passing off.

Which parts of it do you think radically diverge from trade mark law currently?

One has to think "what is the purpose of the DRS" and I can only see that the answer would be something along lines "because it gives a cheap and easy route" for complainants to get the domain names. It is not actually cheap for those on the receiving end,

Given that only a handful of respondents (i.e. those that appeal) ever pay anything for the DRS, how could we make it cheaper? How is it more expensive than the courts? Usually I am told that there is a lot of time spent on writing responses, which I understand, but I cannot see that you would spend less time writing a Defence to a court Claim Form.

and most of the complainants use DRS rather than the law/court system because they know that DRS is so far away from case law that they could not get the domain through the Courts because it would not constitute an infringment.

Out of interest, do you have any proof of that, and which cases are you thinking about, in particular? My experience would tend to be that many users do not begin to understand trade mark law and have chosen the DRS because it is cheaper, or more approachable.

WHY do Nominet feel they have to run a DRS, why do they not simply tell complainants to go to Court ???.

Because so many users would be able to go to court because the expense of it is so high and it takes so long to do. There are very few domain name registries that have that policy - of which Germany is the only large one I can think of, but they get away with that because the court system there is so different. If we didn't have the DRS, we would probably have the UDRP instead.

The DRS is designed to be quick, cheap and easy. Obviously I'm not saying that it is perfect in all regards - that is why we update it regularly, but simply saying "Go to court" really doesn't solve the huge number of problems that people have. I realise that many people on this forum are at the receiving end of DRS cases, and it is for that reason I am always so keen to hear your views about the DRS and specific things that are wrong with it, in your view. But I don't think you can argue that the DRS has no purpose at all, and wishing for a world without the DRS or an equivalent is probably a vain hope.

Indeed that fact that the DRS is so far
away from Case Law *may* constitute some kind of unfairness to respondents ?. If for example a domain holder was using a name in breach of TM laws and/or passing off then the complainant could easily take that person to Court. Why should DRS make the hurdle so much lower to allow complainants to more easily grab domains from respondents ?. It maybe that the DRS is an unfair contract term or similar in that it deliberately goes against settled TM law.

DG

The DRS is designed to allow a fair system in domain names, given their nature, purpose, allocation method and other factors - it is not just supposed to be a home-made copy of trade mark law. But really I would have to go back to my first question - in what way is the DRS so divergent from the general law?

I know that there are a lot of questions in this post, but its important to understand the specific problems you see with the DRS, rather than general statements of dislike!

 

[netserve]

The DRS is designed to be quick, cheap and easy.

How about the DRS being designed to be fair and equitable?

I haven't got any specific examples but I read about 15 DRS cases about 2 weeks ago and in at least 5 or 6 of them I felt that the complainants cases were weak, failed to prove each of the required elements, or just appeared to be a case of the complainant trying to swipe a domain after the fact.

I'm not saying that the respondents were all whiter than white but reading the DRS I get the distinct impression that the 'experts' lean towards the side of the complainant and almost trying to guide their interpretations of the complaint towards a result in their favour. ie if a point the complainant makes is vague the expert will tend to reinterpret it as a plus point for the complainant.

I'm not suggesting this happens, but it's as though the expert sees the respondent as a guilty cyber squatter and then spins the complaint about until it proves the case. It would be nice to see a few cases where the respondent was as guilty as hell but the expert decided that the complaint didn't deliver a case that proved guilt.

I've got a great deal of respect for the legal bods at Nomient but I'm not sure the DRS results come across in the right way.

 

[EdPhillips]

Thanks netserve. The DRS is designed to be fair, too, of course. I rather hoped that that went without saying....but maybe not.

It would be nice to see a few cases where the respondent was as guilty as hell but the expert decided that the complaint didn't deliver a case that proved guilt.

Well, I don't know about "guilty as hell" but there are certainly cases where the experts reject complaints that have not proved their case. One reasonably recently was (from memory) lhhscotland.co.uk, where if I remember rightly the Expert said (I paraphrase) 'you're the wrong complainant. If you'd have been the right one, you'd probably have won.'

I've got a great deal of respect for the legal bods at Nomient but I'm not sure the DRS results come across in the right way.

And that's what I'm trying to pin down. If there are no specific problems, just a general impression, I want to understand the root of that general impression. It may just be bad presentation, or it may track back to something else.

 

[tifosi]

And that's what I'm trying to pin down. If there are no specific problems, just a general impression, I want to understand the root of that general impression. It may just be bad presentation, or it may track back to something else.

I think one of then main impressions is that it 'feels' biased towards the complainant, and that any Tom, Dick & Harry (.co.uk) that thinks they have a 'case' for getting a domain off a registered owner can do so through the drs with a minimum of comeback. At most it'll cost them the expert fee, which in comparison to the value of domains as business assets in the current online climate is miniscule.

1. There is no 'validation' of a complaint at the start of the DRS
2. There is no initial fee - It may have an effect it may not.
3. The FAQ should be far more detailed as what is valid & what isn't. I know this was something you were looking at around the time of my recent DRS. Complainants should be forced to accept terms based on them reading and accepting its contents.
4. complaint-response-reply works, but again it's 2 bites of the cherry for the complainant. The NS submission doesn't need to be accepted and it can be replied to by the complainant.
5. May be worth looking into the mediators having more clout to determine the validity of a claim.

Many respondents seem to feel overwhelmed by the whole procedure. It's designed to be done without legal help... but in the current climate and looking at the drs results it seems to be big corporate clients against the little guys. Hardly what it was intended for.

I know it took me 40+hrs and cost x,xxx in effective time & lost business. I'm a smart & determined guy but I've got to say it took a lot out of me.

I don't know the full solutions. It's a WIP I know. But it seems to me the starting point is the starting point.

Stephen

 

[vjroberts]

If we didn't have the DRS, we would probably have the UDRP instead.

You mean UDRP which

requires a Complainant to establish rights that predate Respondent's registration of the disputed domain name. See Ode v. Intership Ltd. stating that " We are of the unanimous view that the trademark must predate the domain name.".

Instead of Nominets DRS which allows new and recent trademark or even other non-registered rights to override the rights of registrants who registered domain names long before the complainant came into existence.

 

[Beasty]

You mean UDRP which

requires a Complainant to establish rights that predate Respondent's registration of the disputed domain name. See Ode v. Intership Ltd. stating that " We are of the unanimous view that the trademark must predate the domain name.".

Instead of Nominets DRS which allows new and recent trademark or even other non-registered rights to override the rights of registrants who registered domain names long before the complainant came into existence.

Perhaps Ed could inform us of another IP rights system that allows rights acquired after the event to be succesfully applied retrospectively to claim infringment.

 

[Nigel]

Perhaps Ed could inform us of another IP rights system that allows rights acquired after the event to be succesfully applied retrospectively to claim infringment.

I think Ed will struggle to do this unless another country has based its IP rights system on Nominet's.

Let's face it Ed - Nominet is the most blatantly unfair DRS in the world as VJRoberts put so well. Combined with the patent office handing out trademarks for the most common generic terms many domain entrepreneurs have registered common generic words/sayings many years before that will be snatched away as soon as your expert sees the trademark. You are actually encouraging large corporations to throw some money at a common word or phrase and hitting the jackpot because of the Nominet's expert skewing favouritism to the trademark which may have been registered many years after the domain was first registered. The sooner it is changed the better.

 

[domaingenius]

Which parts of it do you think radically diverge from trade mark law currently?

The fact that many DRS results that I have seen do not require that the respondent have even been using the domain to pass off ,simply that he has registered the name itself. A small piece of the One in a Million case that is often overlooked is ther Judges statement that "there is NO tort of going equipped to pass off" . i.e. you either are using the domain to pass of or you are not. Simple possession is not sufficient to ground a claim in the Courts. Compare that with DRS and I know from experience that that is not the case in DRS decisions. Why not ,and why is the hurdle placed lower for complainants in the DRS than in Court ?.

Given that only a handful of respondents (i.e. those that appeal) ever pay anything for the DRS, how could we make it cheaper? How is it more expensive than the courts? Usually I am told that there is a lot of time spent on writing responses, which I understand, but I cannot see that you would spend less time writing a Defence to a court Claim Form.

Put it this way, firstly in most cases where a DRS is issued those complainants simply would not have a legal leg to stand on. So I owned a certain domain that I was not using to pass off with and yet I lost that name under DRS. They could easily have sued me but knew that under UK law they could not succeed as they had no claim. Therefore to defend such a claim would be simple and involve a simply refute of the claim and provision of statement "the defendant has never used the name to pass off as the claimant and does not propose to do so". Case closed. That is much easier than a convaluted defence under the DRS using rules that change day by day so no one really knows that the rules actually are anymore. THAT is the reason they have case law and precedents to refer to in Court system .

Out of interest, do you have any proof of that, and which cases are you thinking about, in particular? My experience would tend to be that many users do not begin to understand trade mark law and have chosen the DRS because it is cheaper, or more approachable.

Yes,my own. I understand TM law very well thanks and have defended and taken claims successfully.

Because so many users would be able to go to court because the expense of it is so high and it takes so long to do. There are very few domain name registries that have that policy - of which Germany is the only large one I can think of, but they get away with that because the court system there is so different. If we didn't have the DRS, we would probably have the UDRP instead.

Does Nominet offer "fee exemption" and if not is that not discriminatory against those less well off ?. The Court system offers fee exemption and thus unless you use a solicitor (most of whom are bloody useless !!) the costs are cheaper than DRS.

The DRS is designed to be quick, cheap and easy.

But NO mention of "fair" ????. Well there is an obvious fault somewhere in the design.

Obviously I'm not saying that it is perfect in all regards - that is why we update it regularly, but simply saying "Go to court" really doesn't solve the huge number of problems that people have. I realise that many people on this forum are at the receiving end of DRS cases, and it is for that reason I am always so keen to hear your views about the DRS and specific things that are wrong with it, in your view. But I don't think you can argue that the DRS has no purpose at all, and wishing for a world without the DRS or an equivalent is probably a vain hope.

No sure, the "purpose" is to allow big business to crush the little man.


DG

 

[sneezycheese]

Excellent post DG!

In answer to some of your questions:

Does Nominet offer "fee exemption"

Answer = NO

…and if not is that not discriminatory against those less well off?

Answer = YES (in my opinion)


Maybe there’s scope for a group of like minded individuals/companies/etc to get together to tackle the fairness/legality of the DRS contract. I don’t know if it’s possible, but could this group get injunctive relief (Freezing Order/Mareva Injunction) from the court, prohibiting Nominet from transferring domains away from ALL domain owners under the DRS?

In any case, it does seem that there is a consensus developing here.

Maybe we can all pool our knowledge/resources together and make some real changes, rather than just bleating about the problem with the DRS. …By the way, I must include myself in the ‘bleater’ category

 

[rob]

http://www.nominet.org.uk/digitalAssets/3004_DrsReviewOct.pdf has the oct 2004 DRS consulation findings... I think this was the last review?

Interesting to note that my suggestion on the previous 'form' of a domainer ought not apply to a single DRS as it may be irrelavant has shown up on the latest DRS published - Bounce.co.uk transferred !

 

[bb99]

In any case, it does seem that there is a consensus developing here.

It does indeed seem so, although it's hardly surprising as most people on here are going to be those who are on the receiving end of a DRS rather than at the firing end

Going back to the original post, maybe it would be worth one of us emailing the other PAB election candidates to get their views on the current DRS policy etc and ask them to post them on here? Some may have views (positive or adverse) that they didn't mention in their election statements.

 

[domaingenius]

http://www.nominet.org.uk/digitalAssets/3004_DrsReviewOct.pdf has the oct 2004 DRS consulation findings... I think this was the last review?

Interesting to note that my suggestion on the previous 'form' of a domainer ought not apply to a single DRS as it may be irrelavant has shown up on the latest DRS published - Bounce.co.uk transferred !

Yes ,and I cannot see how DRS could on the one hand take into account the "form" of a domainer/previous respondent and yet on the other hand not allow previous DRS cases to be referred to in the same way as case law is referred to in court.

DG

 

[domaingenius]

What I would like to add to my comments is this. Referring to the comment of the Judge in the One in a Million case I stated in my earlier message in this thread ,that there is no tort of "going equipped to pass off" , it seems that what is wrong with the DRS is that the "bad faith" element is all wrong and weighted so heavly towards the complainant. What I would like to see bad faith described as is as a breach of TM law or a deliberate attempt to extort money viz e viz blackmail, for which the complainant would have to prove his/her case and no vice versa. IF ,as Nominet say, the DRS is there to make things cheaper they have NOT said that it is there to make things easy for complainants , and yet it does.

DG

 

[tifosi]

Excellent post DG!

In answer to some of your questions:


Answer = NO


Answer = YES (in my opinion)


Maybe there’s scope for a group of like minded individuals/companies/etc to get together to tackle the fairness/legality of the DRS contract. I don’t know if it’s possible, but could this group get injunctive relief (Freezing Order/Mareva Injunction) from the court, prohibiting Nominet from transferring domains away from ALL domain owners under the DRS?

In any case, it does seem that there is a consensus developing here.

Maybe we can all pool our knowledge/resources together and make some real changes, rather than just bleating about the problem with the DRS. …By the way, I must include myself in the ‘bleater’ category

While I agree, in part, as a nominet member I'd prefer that we work with the Nominet legal body - Ed etc, and not outside.

Bleating's great, but it's better to be the shepherd than the flock.

 

[Jac]

What we need to see is a DRS that follows more closely the law regarding trademarks and passing off. One has to think "what is the purpose of the DRS" and I can only see that the answer would be something along lines "because it gives a cheap and easy route" for complainants to get the domain names. It is not actually cheap for those on the receiving end, and most of the complainants use DRS rather than the law/court system because they know that DRS is so far away from case law that they could not get the domain through the Courts because it would not constitute an infringment.

The DRS either needs to be revamped or done away with totally. WHY do Nominet feel they have to run a DRS, why do they not simply tell complainants to go to Court ???. Indeed that fact that the DRS is so far
away from Case Law *may* constitute some kind of unfairness to respondents ?. If for example a domain holder was using a name in breach of TM laws and/or passing off then the complainant could easily take that person to Court. Why should DRS make the hurdle so much lower to allow complainants to more easily grab domains from respondents ?. It maybe that the DRS is an unfair contract term or similar in that it deliberately goes against settled TM law.

DG

Hi,

Can I just mention that all the comments you guys are making on the DRS (or any other Nominet issue) is of immense importance when it comes to getting a cross section of opinion. Without views like yours, Nominet will be just as much in the dark as some of you seem to be. I am Nominet's greatest supporters but also it's greatest critic; I have sometimes been in a minority of one on my standpoints but at least I made them. Any of you can effectively do the same. Nominet's mission statement is about "the interests of the wider stakeholder communities" and that'd be you as much as it would be me or any other member or registrant (aka stakeholders).

Things don't get changed unless there is some support and someone to carry the support forward. Nothing gets opposed without the dilegence of some (now prominent) members like Hazel Pegg and Clive D.W. Feather. I supported the recent "No" campaign for all the reasons Hazel stated, but I don't want to see Nominet held back because of self-imposed and restrictive rules on voting structure or anything else. What I would ask of all Acorn Domains subscribers is that they make their opinions known outside the confines of these forums whether that be through Hazel or myself. Your opinions are all equally valid within Nominet's definition of "stakeholder".

If you want to know exactly where I stand on the issues contained in my election statement please visit www.conaghan.me.uk - I say more about DRS for instance under "Things I would like to resolve" http://www.conaghan.me.uk/html/what.html.

Like all these issues, the first step is stating your case and taking it to the PAB table for discussion. The PAB is a think tank and IMO highly representative of the wider stakeholder communities and it was set up to provide feedback to Nominet (the board). So let 'em have the feedback!

Regards
James Conaghan
[email protected]

 

[Whois-Search]

Richard Martin used to run a drop catching service:

http://web.archive.org/web/20040602212413/www.yoursitehere.co.uk/monitor.php

Wonder how many TMs they caught ???

 

[richard]

Richard Martin used to run a drop catching service:

http://web.archive.org/web/20040602212413/www.yoursitehere.co.uk/monitor.php

Wonder how many TMs they caught ???

Ouch slightly incorrect, I was merely a reseller of yoursitehere's catching service.

I do not and did not work for yoursitehere

 

[richard]

And I don't remember getting any TM's for anyone

I have never any DRS issues