Anatomy of a DRS - the good, the bad & the ugly.

[tifosi]

Having gone through the whole DRS procedure - from notification of its invocation to the non-standard submission and expert report, I've probably got a fair idea of how it all works and what it takes.

Firstly, I know some of the nominet staff frequent the board. Throughout the procedure they were professional and courteous. They get some stick on this board, 99% of it unjustified. Lay off. That's said irrespective of the outcome. I've been a member of the domain community for ~2yrs. It's a tough business, but Nominet handle it pretty well. Doesn't mean I think it's perfect.

Secondly, Thanks to Owen at Servitor and Ed at Namedrive for their support. Appreciated.

The details of the DRS are public so I'm not going to go through them. The domain was caught on a prenom drop, and parked. Unfortunately the complainant had spent a number of months reactivating a sleeping business to utilise the name with the assumption they would get the domain when it was released. I think it was a rude awakening to the domain industry. If I didn't get the name any one of 50+ dropcatchers would have, and very likely done exactly the same with the name. Enough said.

Saying that the attacks on my personal and professional approach to domains took me by surprise. The biggest thing I learned that this is Business, not personal. Domain names have an intrinsic value sometimes well above and beyond their registration value. They are business assets and should be treated as such.

Fighting this case has cost an estimated £3000 in lost business, cumulative value of the 40+hours it took to fight each stage, and in 2am finishes on top of a working day. Not pretty, but necessary.

One thing anyone cited in a DRS will have to be aware of is that this is a cutthroat industry. The approach you will have to take is that of a prosecuting lawyer, within the bounds of the policy and procedure, and with the determination that it ain't no walk in the park. Don't want to do that, well then just sit back and watch the system steam roll you. The experts are competent, but human, and you'll have to fight your corner.

Be under no illusions. I've seen the domain market mushroom in the last 2years. With the technical infrastructure in place - broadband/PC power/browsers ets, and the move to online commerce of all the big players e.g the supermarkets, it's predicted to get bigger. There is a fight for position and that involves every generic domain in your portfolio.

So onto the DRS procedure. It works, but with a caveat. The people I dealt with were good. The expert surprised me with the pinpoint analysis - and I say that with the opinion that the hours taken to provide the evidence was justified. The procedure itself though I think can be improved by one major way. The one thing that struck me through the whole process was that with each response I got it came with the information that Nominet don't check the information for validity or that it complies to the requirements of the DRS procedure. This is left to the expert to decide, and in some respects to the mediator.

It left me feeling that I had spent 40 hrs fighting a case which should never have got that far. The DRS procedure is free until the expert is called upon. This I believe is false economy. The charge (or partial charge) should be at the start of the procedure, payable on the premise that the first stage is a 1000word deposition siting the case which should be reviewed for it's validity by a representative board - nominet members, staff, legal experts. Only on passing this should the case progress. In some cases it could also be a method of bypassing the whole procedure with an expert decision if all parties concur.

I know that the DRS is reviewed periodically. I hope this is taken on board. It's said as a concerened Nominet member.

Sorry for the essay!

Stephen

 

[rob]

I would agree, it is far too easy to start up a DRS complaint and that needs to be looked at as time, effort and expense has to be outlayed even if there are zero grounds for a win.

Excellent post

 

[Nigel]

Well done Tifosi - you've done us all a favour by putting together a first class response and not rolling over. Good job you caught it too

 

[EdPhillips]

Hi
Thanks for your comments about the Nominet staff and expert, which I will pass on to them.

You are correct that Nominet doesn't review the cases that come in. This is difficult one, but its probably best to think of what went before. Under the old (pre-2001) DRS Nominet staff did read all the cases and make decisions - but this was vastly time consuming and regularly appealed. It turns out that actually this had little more effect that skipping straight to the expert stage and was not a success.

Having said all that, we are looking at a couple of options that might help in weeding out some of the worst complaints, the most easy of which are changes to the DRS web-pages that you will see soon (possibly before the end of the week, depending how busy the communications department are).

Finally, the question of charging for the DRS has been raised before, both here and in questionairre responses. The Norwegian registry, which largely copied the DRS, does charge - so its an interesting topic to think about. No decisions yet, though.

 

[FC Domains]

It does seem that complainants often submit a rant about 'cyber-squatting ' solely on the grounds that the registrant has something that they want.
Several rulings have pointed out that the sale of domain names is a legitimate trade, which doesn't break any rules in itself. Maybe this could be pointed out in the FAQ.

Also the complainant is often guilty of not thinking fast enough to buy the domain in the first place, or getting proper advice, which generally in business is seen a tough luck.
So might it be fair to dismiss any case before mediation, where the registrant is willing to sell for under £750.
It would have saved me hours of paperwork on domains where the complainant gives up, before it costs them anything.

 

[aqls]

Thanks Tifosi, great post.

-aqls-

 

[Paullas]

good post to a good result....

 

[EdPhillips]

So might it be fair to dismiss any case before mediation, where the registrant is willing to sell for under £750.

On that basis, if you register cocakola.co.uk and use it to sell pepsi (which is almost certainly an abusive registration), but offered to sell it for £749.99, Coke would have to sue you or pay up.

I suspect that that would not be seen as a fair outcome.

 

[Edwin]

Excellent summary, thanks!

 

[FC Domains]

On that basis, if you register cocakola.co.uk and use it to sell pepsi (which is almost certainly an abusive registration), but offered to sell it for £749.99, Coke would have to sue you or pay up.

I suspect that that would not be seen as a fair outcome.

True, but on the other hand there is nothing to stop complainants using DRS when they have a very weak claim. Just to see what happens.

The system does need a quick way of weeding out blatantly abusive registrations and hopeless claims. Just to save pointless paperwork.

 

[Nigel]

Good point Colin

It's about time anyway that the DRS fee was increased to a more reasonable level (isn't .com about £3000 now?) to weed out the time wasting claims and to make a modest charge as soon as Nominet are notified so that those complainants that have no intention of paying for the expert have to at least pay something for instigating a complaint. What about a two staged fee system as shown below?

£250 - initial stage
£750 - 'expert' stage
= £1000 Total fee

 

[tifosi]

True, but on the other hand there is nothing to stop complainants using DRS when they have a very weak claim. Just to see what happens.

The system does need a quick way of weeding out blatantly abusive registrations and hopeless claims. Just to save pointless paperwork.

Nicely put.

I'd just like to see some kind of peer-review procedure put in place. If the complainant then wants to go against this and force the DRS then the original peer-review would be on record.

S

 

[EdPhillips]

£250 - initial stage
£750 - 'expert' stage
= £1000 Total fee

That's approximately how the Norwegians do it, as it happens.

 

[EdPhillips]

Nicely put.

I'd just like to see some kind of peer-review procedure put in place. If the complainant then wants to go against this and force the DRS then the original peer-review would be on record.

I'm not sure I'm clear what kind of "peer review" you mean? Whose 'peers'? Or do you want a member of the DRS staff to officially get back to the complainant and say "personally, mate, I think you've got no chance" or "you should definately win". I'm not sure what that would acheive - except make Nominet look extremely biased to one side or the other. Perhaps I misunderstand what you're suggesting...

 

[EdPhillips]

The system does need a quick way of weeding out blatantly abusive registrations and hopeless claims. Just to save pointless paperwork.

Say, for the sake of argument, that Nominet gets a complaint in about a domain that you have registered, and the Nominet member of staff dealing with the "quick review" (whatever that turned out to be) decided that you were clearly cybersquatting and took the name off you without waiting for your response... would you be happy with that (I'm assuming not...)

If you have any specific ideas of how a "quick way" to do this could be structured, I'd be interested to hear them, but generally all the ideas that have been put to me fail for two reasons:

either

• they require a member of Nominet staff to "just decide quickly" (which is immediately open to accusations of bias, lies in complaints that you can't respond to and arguments as to its fairness); or
  
• they require the expert to give a "cheaper" decision earlier - which is much the same concept but has the added problem that the experts are unlikely to do the same work, faster, for less.

I understand the frustration that gives rise to these sorts of comments, but I've seen very few workable solutions given - there are some good ideas, of course and we are looking at them. Any more would be gratefully received, naturally.

 

[sneezycheese]

Mmm I just had a thought How about this for a suggestion:

Nominet sets up a crack team of ‘in house experts’ who would deal with all DRS cases from beginning to end, removing the need subcontract out the work. Now due to the fact this team works day in day out with dealing with these cases and they know and understand the contract with us domain registrants, they’re pretty slick and don’t make many mistakes. As this is an ‘in house’ team of experts, running costs of the scheme can be minimised and there would be no reason why the cost of any appeal could not be the same as the cost of a complaint (i.e. a level playing field). This would keep everybody very happy on all sides and would help reduce what must be a worrying figure of nearly 50% of DRS decisions that are overturned when appealed.

Remember it’s just an idea, or maybe more like a dream

 

[Rich]

I think a couple of changes for the better would be to

1. Allow the Respondent to choose a panel of 3 experts if they so wish (less chance of a bad decision)

2. Allow the Respondent the right to appeal for £750+Vat. I think many respondents walk away from bad decisions as the £3000+VAT cost of appeal is too prohibitive

 

[aqls]

It won't be long (maybe already) that people bring their lawyers to these meetings.

The £750 will start to look like pocket change.

-aqls-

 

[bb99]

It won't be long (maybe already) that people bring their lawyers

[...]

The £750 will start to look like pocket change.

Aye... My IP lawyers are £190/hour for the gimp and £230/hour for the partner. And that's "oop North" prices, not London. Oh, and don't forget to add the VAT on your way out.

 

[olebean]

Forgive me if I am on the wrong track £3k for experts?? How did these peope become experts and hat is the process to become an expert ( i just facy the 1k for half an hour ish)