DRS double jeopardy??

bb99 · Jan 13, 2009

Mildly interesting DRS related article in today's Telegraph...

As DRS gurus will know, the same party can't DRS another party over the same domain name twice. Here's what the good policy says:

e. If a complaint has reached the Decision stage on a previous occasion it will not be reconsidered (but it may be appealed, see paragraph 10(a) and Procedure paragraph 18) by an Expert. If the Expert finds that the complaint is a resubmission of an earlier complaint he or she shall reject the complaint without examining it.

And yet here we have two DRSs.

The first DRS was in 2005 and is here.

It looks like that DRS mostly fell down because the complainant ("Framlingham College Enterprises Limited") did not adequately prove rights in the name. Oops

Then in December 2008 we have another DRS on the same name. This time the complainant is "Framlingham College". Here it is. In this case, the complaint was successful.

For the purposes of this rambling post, I will assume that the two complainants are the same. Is that a fair assumption? Well probably. If not, they are surely share the same ultimate control and should be treated as the same.

So in what circumstances can an expert allow a 2nd DRS? The policy says:

f. In determining whether a complaint is a resubmission of an earlier complaint, or contains a material difference that justifies a re-hearing the Expert shall consider the following questions:

i. Are the Complainant, the Respondent and the domain name in issue the same as in the earlier case?
ii. Does the substance of the complaint relate to acts that occurred prior to or subsequent to the close of submissions in the earlier case?
iii. If the substance of the complaint relates to acts that occurred prior to the close of submissions in the earlier case, are there any exceptional grounds for the rehearing or reconsideration, bearing in mind the need to protect the integrity and smooth operation of the Policy and Procedure?
iv. If the substance of the complaint relates to acts that occurred subsequent to the close of submissions in the earlier decision, acts on which the re-filed complaint is based should not be, in substance, the same as the acts on which the previous complaint was based.

g. A non-exhaustive list of examples which may be exceptional enough to justify a re-hearing under paragraph 10(f)(iii) include:

i. serious misconduct on the part of the Expert, a Party, witness or lawyer;
ii. false evidence having been offered to the Expert;
iii. the discovery of credible and material evidence which could not have been reasonably foreseen or known for the Complainant to have included it in the evidence in support of the earlier complaint;
iv. a breach of natural justice; and
v. the avoidance of an unconscionable result.

So it's interesting that the expert has allowed the second DRS without stating exactly why they have done so. Perhaps this was considered at length, but we have no idea of knowing so because the Summary documentation for the second DRS is silent on pretty much everything.

So my point is this: I'd like to see more detail in all of the Summary judgement documents.... What do you lot think?

devolution · Jan 14, 2009

TBH, this is kind of clear cut -- apart from any rules regarding subsequent cases...
If it had been 'framlingham.co.uk' then I don't think a DRS would have been able to get the name, but it's clear it was an abusive registration in the spirit of old John Zucchini...

bb99 · Jan 14, 2009

I agree, I think it does look very clearl cut and like the right decision was made in the end.

I'm just puzzled as to why the expert hasn't clarified why he's allowed the second DRS and in general I tihnk the summary decisions should be more detailed.