Comments please

[grandin]

Comments please:-

An item/product/service is offered for sale and is available to anyone to purchase – a level playing field.

Once paid for in full the item/product/service in law belongs to the purchaser.

If the use of the item/product/service is opposed there is a framework within the law which allows the objector to put forward his case.

If the use of the item/product/service is illegal then the use is prevented but the ownership remains undisputed.

The owner of the item/product/service can be prevented in law from using the said item/product/service therefore rendering it a ‘white elephant’ and of no use to the owner.

NEVER is the owner of the item/product/service required in law to hand it over to a third party.

ONLY if it is found that the seller does not in fact own the said item/product/service and, therefore, has no rights to sell it, can the sale be rendered null and void.

Hi Lee

This is more or less what I was trying to say yesterday in my simplistic way and the way I see it from my perspective.

Also one could say the following:-

Nominet, or whoever, own the domain name offer it for sale. However, if the fact that they sold it to someone who they say, at a later date, had no right to buy it, use it, or sell it, then why does Nominet, or whoever owns the domain name, not investigate this at the time of the sale and establish whether the person purchasing it has the right to buy it?

I wouldn’t think they could or would because anyone has the right to purchase anything – it is on the seller to make sure they legally own the item and they can in fact decline to sell it as it is only an ‘offer to sell’! Once sold, however, it becomes the purchaser’s property. Nominet, or whoever, are no different from any other seller or are they?


...alas Nominet claim that you cannot own a domain name.....contrary to a recent judges belief

Lee

 

[fred]

You never own the domain, you just have a licence to use it, therefore it is not your property.

The terms & conditions of the licence (which you agree to) state that it can be taken away from you.

 

[grandin]

Obtaining a lease which cannot be legally leased to you

Obtaining a lease which cannot be legally leased to you....that is to say Nominet, on the balance of probability, based on the vast expert resource and drs (backing by the well presented PAB) are knowingly offering leases on property that cannot be legally leased

BUT....what you fail to highlight in your assertion is that a domain name is property in a sense and clearly dealt with that way in the courts....well, so far as I see it....refer CITI Bank case

Lee

 

[fred]

Obtaining a lease which cannot be legally leased to you....that is to say Nominet, on the balance of probability, based on the vast expert resource and drs (backing by the well presented PAB) are knowingly offering leases on property that cannot be legally leased

BUT....what you fail to highlight in your assertion is that a domain name is property in a sense and clearly dealt with that way in the courts....well, so far as I see it....refer CITI Bank case

Lee

which brings us back to the point that it is not the 'owning' of the domain that is the problem, but rather what you do with it. i.e. I can legally lease a building, but should I open up a shop in it selling fake stuff, then I am breaking the law and (probably) the terms of the lease.

 

[grandin]

one way or the other

This statement is incorrect:- 'which brings us back to the point that it is not the 'owning' of the domain that is the problem'


Nominets own DRS states....registered in a manner that took unfair advantage of the complainants rights.....and this manner does not require any use... i.e. at the time of registration Nominet took unfair advantange of the complainants rights by leasing the right to a third party for a sum of money...... mark my word Nominet are jointly responsible given that:-

Their knowlegde in respect to TM law extends way beyond that of the average layman registrant and at the point of RENEWAL which is as late as now they are in a position to know whether, on the balance of probability, the right they are leasing is taking unfair advantage of another rights holder..... despite having 35 experts and the PAB at their finger tips they have not taken ANY steps to ensure that what they are leasing is within the law.

OR they have to assume that selling a blank domain name can't be abusive

Lee

 

[fred]

so basically, what you want to see is that every domain registration request made, is published so that anyone wanting to claim rights can block that registration before it is processed? This then leads on to big companies with the money to pay someone to monitor such lists can protect themselves, but small companies can't.

I can't see any other way for nominet to acheive what you seem to want.

 

[grandin]

no

no, thats not what I want....I was merely explaining how offering to sell a blank domain name (without any use) cannot be abusive based on Nominet's own assertion that it cannot pre vet domain names.

It is nothing to do with what I want, is to do with the fact that a company/person cannot knowingly sell a product that is unlawful....they cannot be exempt from this as any other trader is not exempt from this....if they are saying they cannot tell whether a blank domain name is abusive at the point of sale then how can anyoneelse at the point of a DRS unless use is involved.

I personally believe at the point of sale certain character combinations are instruments of fraud and it is Nominets obligation not to sell these.

 

[olebean]

vicarious liabilty?

 

[grandin]

turnover

How can a business turnover millions of pounds and not be considered by the courts as responsible for what they sell.....in effect they dangle bait at a mere £5 and take no responsibilty if they catch a fish that stinks and goes rotten

 

[olebean]

take no responsibilty if they catch a fish that stinks and goes rotten

I've never had a date like that..

 

[grandin]

Date the DRS

Are you saying you have not had a date with the DRS....35 of them

 

[Alpha]

you could draw a parallel with the whole Youtube and copyright issues.

Youtube like Nominet have had no process to vet its use, and therefore claimed "nothing to do with me guv"

we all know what happened with the Youtube and copyright issue - Youtube were found responsible and had to adapt to fit

another parallel can be found in Peer to Peer and file sharing.


in both of these cases and loads more examples, there onus is on the provider of the technology - claiming "nothing to do with me guv" simply doesn't wash.

so i'd say Nominet and co are in a similar position, and that oneday will change - it will have to, the precedent has already been set

 

[grandin]

Indeed

Indeed, going back ten years I would give Nominet some room to move as then they knew alot less than now......BUT there is an argument that the One Million case set such a strong precedence that plans should have been set soon after to ensure that what they were selling was lawful......

It is the contradiction that I have a problem with:-

On the one hand they empower an expert to decide whether, on the balance of proability, the registrant registered the blank domain name as a tool of deception AND

State that they can't pre vet blank domain names for probability of abusive intent.

Too little too late...

AND why am I concerned....Nominet know the average registrant is a small time entreprenuer who does not have the financial resource to pay costs in a court of law.

Other concerns:- If I remeber rightly in the Citibank case the judge presumed that you become the owner of the domain name and therefore did not consider the full facts prior to deciding the case. Furthermore, i think it was this judge who stated that 'it appears that Nominet do not pre vet domain name applications'....but did not hold them jointly responsible.

Lee

 

[sneezycheese]

You never own the domain, you just have a licence to use it, therefore it is not your property.

...Not quite so - further details can be found from the mouth of the Nominet 'expert' chair Mr. T.W. in a public meeting, of which I know there is a voice recording of. :mrgreen:

It is clear that the law and a contract can often differ!

Regards,

Sneezy.


PS: Just got back from Glasto and it's been one hell of a soggy one! :shock:

 

[grandin]

Not law

The DRS employs experts in law and contains many references to UK case law BUT Nominet only need to follow its own terms and conditions and not the law. The contract allows Nominet to cancel your contract for any reason that the expert cites....the expert can rule outside the written words of the DRS Policy (section 3).

Recently the Mercer appeal panel made a statement that opens the door very wide......... the registrant must show abusive behaviour

However, abusive behaviour is determined by the expert and not a rule or term within the contract.....on this basis you cannot guarantee a DRS win.

I personally think that it is only reasonable to be punished for knowingly doing something abusive..... if you exceed a speed 30 in a 30 zone then you deserve to get a ticket

BUT if the 30 sign had the word 'may' added on it and you got done for going 22 (the courts decided that on this occassion you should have gone 20 not 30) then you would think the court system had gone bonkers!....Nominet bonkers indeed!!

Alas, it was always Nominets duty to update the written words of the DRS policy to reflect the 3 million word DRS archive....they have not so if I was a judge then I would hold them jointly responsible especially given they remain a rights holder of the abusive domain name i.e. they lease their right to domain name registrant.....Nominets liability is limited to £5000 unless they are negligent.......negligent for not taking reasonable steps to ensure that the products being sold are not unlawful....??

Lee

 

[researcher]

It’s not entirely correct to imply that Nominet are selling/leasing/licensing something that they own, especially in those cases where the domain name is ‘constructed’ by the registrant as part of the registration process. In this respect, I rather doubt it would be fair to hold them accountable if the name itself becomes the issue.

However, what Nominet are legally required to do is provide a rigid and clear framework under which those domain names come to exist, how they are administered once they exist, and whether their existence or use is detrimental to a business’s or consumer’s legal rights. Their terms and conditions are constructed to cater for these groups. Like any company and its Directors, they will recognise these obligations and can be bound by them in a Court if anyone cares to take it that route.

Where you say Grandin “How can a business turnover millions of pounds and not be considered by the courts as responsible for what they sell...”, I think you may be missing a point. Would you not agree that the better argument to put before a Court would be about the manner by which Nominet provided it services, i.e., if they stepped out of their contractual obligations to the detriment of the registrant, then I think you would have an entirely different situation indeed.

Nominet do of course provide the DRS process as a means of settling matters, through mediation then ultimately an ‘independent’ expert. In theory, this should be sufficient to resolve matters once and for all, but to do so, it must accurately reflect the decision one would expect a Court to reach if it is to be effective, otherwise it serves no purpose, or worse still it would be found to be an ineffective or badly administered solution.

Unlike in the sex.com case, there has never been a .co.uk domain name of such significant commercial or public interest, that it would generate a widespread & newsworthy story to spark further debate about Nominet or the management of the UK tld, and the chances of one turning up now is highly unlikely.

I rather think that unless such a thing happened, then you won’t get the external ‘vehicle’ through which many domain people hope they will be able to push for change.

 

[Whois-Search]

It’s not entirely correct to imply that Nominet are selling/leasing/licensing something that they own, especially in those cases where the domain name is ‘constructed’ by the registrant as part of the registration process. In this respect, I rather doubt it would be fair to hold them accountable if the name itself becomes the issue.

However, what Nominet are legally required to do is provide a rigid and clear framework under which those domain names come to exist, how they are administered once they exist, and whether their existence or use is detrimental to a business’s or consumer’s legal rights. Their terms and conditions are constructed to cater for these groups. Like any company and its Directors, they will recognise these obligations and can be bound by them in a Court if anyone cares to take it that route.

Where you say Grandin “How can a business turnover millions of pounds and not be considered by the courts as responsible for what they sell...”, I think you may be missing a point. Would you not agree that the better argument to put before a Court would be about the manner by which Nominet provided it services, i.e., if they stepped out of their contractual obligations to the detriment of the registrant, then I think you would have an entirely different situation indeed.

Nominet do of course provide the DRS process as a means of settling matters, through mediation then ultimately an ‘independent’ expert. In theory, this should be sufficient to resolve matters once and for all, but to do so, it must accurately reflect the decision one would expect a Court to reach if it is to be effective, otherwise it serves no purpose, or worse still it would be found to be an ineffective or badly administered solution.

Unlike in the sex.com case, there has never been a .co.uk domain name of such significant commercial or public interest, that it would generate a widespread & newsworthy story to spark further debate about Nominet or the management of the UK tld, and the chances of one turning up now is highly unlikely.

I rather think that unless such a thing happened, then you won’t get the external ‘vehicle’ through which many domain people hope they will be able to push for change.

hmmmm not many people I know can write like that or are so knowledgeable about certain cases. So who are you? You either work/worked for Nominet or must be a lawyer that's for sure.

Admin please can we have a ip check on the "researcher".

 

[grandin]

Talk with some good understanding

As whois explains, you do indeed speak with some knowledge, however you do have to take yourself down to the level of the average registrant i.e. what matters is the pulbic understanding....

in reply:-

You said:- It’s not entirely correct to imply that Nominet are selling/leasing/licensing something that they own, especially in those cases where the domain name is ‘constructed’ by the registrant as part of the registration process. In this respect, I rather doubt it would be fair to hold them accountable if the name itself becomes the issue.

I say:- Incorrect, the potential registrant puts in a whois search for the term toysrus.co.uk..... Nominet return saying we offer you toyrus.co.uk for £5.99 for 2 years....Registrant accepts that offer.........it accepts the dangling bait....with relevant checks Nominet does not have to return 'an offer' could return a 'referrral' i.e. a manual proove your rigthts in what seems to be a domain name that belongs to an unequivocal rights holder....easy peasy!

You said:- However, what Nominet are legally required to do is provide a rigid and clear framework under which those domain names come to exist, how they are administered once they exist, and whether their existence or use is detrimental to a business’s or consumer’s legal rights. Their terms and conditions are constructed to cater for these groups. Like any company and its Directors, they will recognise these obligations and can be bound by them in a Court if anyone cares to take it that route.

I say :- Unless someone has to go to court they won't...the stress in relation to going to court would certain put me off

You said:- Where you say Grandin “How can a business turnover millions of pounds and not be considered by the courts as responsible for what they sell...”, I think you may be missing a point. Would you not agree that the better argument to put before a Court would be about the manner by which Nominet provided it services, i.e., if they stepped out of their contractual obligations to the detriment of the registrant, then I think you would have an entirely different situation indeed.

I say:- I personally don't understand this, can you explain more?... you say 'if they stepped out of their contractual obligations to the detriment of the registrant, then I think you would have an entirely different situation indeed.'

I say in respect of the DRS their is nothing to step out from as the expert is empowered to do as he/she likes.

You said:- Nominet do of course provide the DRS process as a means of settling matters, through mediation then ultimately an ‘independent’ expert. In theory, this should be sufficient to resolve matters once and for all, but to do so, it must accurately reflect the decision one would expect a Court to reach if it is to be effective, otherwise it serves no purpose, or worse still it would be found to be an ineffective or badly administered solution.

I say:- If the DRS hasn't defined the act that was later found to be the act that led to the domain name being abusive then how can a DRS be helpful? Sometimes you have to tell people how to act before you tell them off for not acting in a certain way..... some abuse is not clear cut


You said:- Unlike in the sex.com case, there has never been a .co.uk domain name of such significant commercial or public interest, that it would generate a widespread & newsworthy story to spark further debate about Nominet or the management of the UK tld, and the chances of one turning up now is highly unlikely.

I say:- Indeed, court is not the route for a £5 domain name. However, a rights holder may well take this route and maybe the judge will review Nominets role in the registration of the abusive domain name.....significant time has lapsed since citibank case.

You say:- I rather think that unless such a thing happened, then you won’t get the external ‘vehicle’ through which many domain people hope they will be able to push for change.

I say:- I have a bit more hope than that, the DRS is indeed under review.

Lee