Bad Faith

[domaingenius]

What exactly constitutes bad faith under the DRS please ?.

DG

 

[Beasty]

What exactly constitutes bad faith under the DRS please ?.

DG

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.

 

[grandin]

The DRS says 'registered in a manner that took unfair advantage of the complainants rights'

In my eyes thats registered in bad faith

Lee

 

[Beasty]

The DRS says 'registered in a manner that took unfair advantage of the complainants rights'

In my eyes thats registered in bad faith

Lee

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?

 

[grandin]

DRS decision

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?

Reference 3aia

How can you have abusive manner of registration thats not considered to be a registration in bad faith!!!

Lee

 

[Beasty]

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?

Reference 3aia

How can you have abusive manner of registration thats not considered to be a registration in bad faith!!!

Lee

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.

 

[olebean]

Lee

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...

 

[grandin]

But

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?

 

[Beasty]

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.

 

[olebean]

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.

Absolutely!

to tailor it to suits the needs of the .uk domain and to address some of those problem areas

T W 2006

 

[Beasty]

to tailor it to suits the needs of the .uk domain and to address some of those problem areas

T W 2006

Is that Tony Willoughby Olebean? What would those unique problems be with .uk?

 

[olebean]

the policy is only availiable to rights owners not just trade mark owners

the complainant is only required to prove identity or similarity not confusing similarity

Abusive criteria anr similar to bad faith save that abusive reg can lead to transfer originally regged in good faith, false contact details, where the body of the domain name is identical to the mark n being used for tribute etc

Nominet can initiate an appeal procedure

mediation service

complainant has the right to reply

a requirement that the complainant only prove two matters of udrp.the missing element that the complainant re allegation of bad faith is treated as a defence rather than a negative for the complainant to prove

TW 2006


In other words ther are no special reasons!

He also suggests that 2001 was a significant year... The changes made to DRS so that transfer of domains can occur under DRS and it ony covered likely passing off

 

[grandin]

Lets also not forget

Lets not forget:-

T&C's state that Nominet have sole discretion on whether to transfer a domain name (unless a court order requires them to).

The experts have openly stated (in DRS cases) that they do not assess trade mark infringement or passing off (recently decided??).

So beasty, bearing in mind the T&C's state:- 7.4 'by registering or using the domain name in any way, you will not infringe the intellectual property rights (for example, trademarks) of anyone else;'

Have recent DRS decisions (discounting trade mark infringement/passing off) broken the above condition, if so can you explain how?

Lee

 

[domaingenius]

Thanks for the replies. What I am thinking along the lines of is, how can a purchaser of a 2nd hand domain (from one of us ) be classed as having registered in bad faith or to take advantage ?. Much the same as there is some law that means that if you purchase stolen antiques without knowing they are stolen I believe there is (not sure but I heard it somewhere) some law that means that title still rests with yourself even though a third party had it stolen from them. Just thinking whether if "B" who buys the domain from "A" who actually regged the domain can shake off the bad faith type element as he would not have had that intent as he didnt reg it he bought it afterwards.

DG

 

[grandin]

not property

its not property....new contract every two years so i assume any liability wouldn't last long if at all

However, now we are on the subject of joint liability...if someone knowingly sells dodgy goods then aren't they held jointly responsible....should they take reasonable steps to ensure that the goods they sell are fit for the purpose?

If you sit on the fence for many years and empower cups of tea drinkers surely you have a hefty price to pay.............BANG the saucer slipped

Lee

 

[rob]

On transfer the new owner agrees to the terms and conditions of Nominet.

I guess the contract states it is for 2 years or up until the domain is surrendered or transferred?

 

[retired_member6]

If you sit on the fence for many years and empower cups of tea drinkers surely you have a hefty price to pay.............BANG the saucer slipped

Lee

whooosh :mrgreen:

 

[domaingenius]

On transfer the new owner agrees to the terms and conditions of Nominet.

I guess the contract states it is for 2 years or up until the domain is surrendered or transferred?

Agreed ,but what I was pointing to was the bad faith was in the original registrant not the person who bought the domain from the original buyer, i.e. surely any bad faith or intent would be lost as the second buyers intent would be entirely different ?.

DG

 

[Beasty]

Agreed ,but what I was pointing to was the bad faith was in the original registrant not the person who bought the domain from the original buyer, i.e. surely any bad faith or intent would be lost as the second buyers intent would be entirely different ?.

DG

Basically yes - see thfc.co.uk appeal on the point.

 

[grandin]

Hold on DG

Hold on DG with respect to the current DRS most transfers are in respect to domain names where the rights holder has unequivocal rights (well almost) to the names. So unless that rights holder buys the name then the subsequent purchaser would be liable. The question is:- Could the original purchaser be held jointly responsible if the rights holder came looking for the name?

Nominet aren't responsible for selling such a domain name...are they so applying that theory I would so no??

Unless you misguide the buyer....tell them you are selling with the rights holders permission to use the name

Lee