Court guidance on applying for Judicial Review

[sneezycheese]

Seeing as it's a subject that's been talked about at length on this forum previously, I thought it might be of some interest to know a little bit about what actually a Judicial Review is and its associated processes...

http://www.hmcourts-service.gov.uk/cms/1220.htm

 

[grandin]

hush hush

its all hush hush at the moment cause a domain in the drs is still subject to transfer but not been transferred....

Lee

 

[Jac]

Seeing as it's a subject that's been talked about at length on this forum previously, I thought it might be of some interest to know a little bit about what actually a Judicial Review is and its associated processes...

http://www.hmcourts-service.gov.uk/cms/1220.htm

And this seems like the crucial bit:

2.1 Judicial review is the procedure by which you can seek to challenge the decision, action or failure to act of a public body such as a government department or a local authority or other body exercising a public law function.

Nominet is not a public body or government department. It seems fair and reasonable therefore to say that you would have to persuade a court that Nominet is a public body before proceeding to Square 2.

Regards
James Conaghan

 

[grandin]

However

However, if Trading Standards fail to act on information given to them AND the judge on a so called case overules a DRS Appeal...then what?

Lee

 

[Jac]

However, if Trading Standards fail to act on information given to them AND the judge on a so called case overules a DRS Appeal...then what?

Lee

Trading Standards cannot 'fail to act' on information given to them but just because information is given to them (or the DTI or OFT) doesn't mean they will find in favour of the complaint. They have strict guidelines to follow in these matters and have to be fair to both complainant and company. If there is no breach of company law and/or if a company has not failed in its duty of care to its customer, then they may decide not to take the complaint any further. That's their duty. I would assume they would inform the complainant (and company) in writing of their decision and the reasons why.

Regards
James Conaghan

 

[grandin]

english law

DRS Decisions have to be based on law...clearly contained in the t&c's...ie. it says that the t&c's will apply unless they become unenforceable under english law.

In cases under Trading Standards they have to be based on english law.

courts overturning drs decisions.......would this not effect the validity and fairness of the contract?

Lee

 

[Jac]

DRS Decisions have to be based on law...clearly contained in the t&c's...ie. it says that the t&c's will apply unless they become unenforceable under english law.

Lee,

I think you'll find DRS decisions are based on DRS policy as she is written at any given time.

In cases under Trading Standards they have to be based on english law.

I was only pointing out that each complaint presented to Trading Standards will go through the system, but that just because a complaint is made, it doesn't automatically mean it will be upheld. If it is upheld then I'm sure Trading Standards will instruct the company being complained about to do certain things; but if it is not found to be of substance, then the company would presumably be vindicated. But that's up to Trading Standards and their own procedures. I can't outguess a government agency.

courts overturning drs decisions.......would this not effect the validity and fairness of the contract?

Courts overtturn court decisions on appeal, but it doesn't affect the validity of the courts or their legal procedures. The whole purpose for having an appeals process is just that; so that people who disagree with a verdict or decision can appeal it. That said, the quick answer is, I don't know what the courts would find in any given situation, but as far as I am aware, to date they have not overtturned a DRS decision. Phones4u/phone4u is a case in point.

However, if a court did overtturn a DRS decision, I'd say it would be prudent for Nominet to immediately look at the cause and effect and adapt or modify its own DRS policy and/or procedure to take the court ruling into consideration. That's what any community spirited organisation should do as a matter of course in my humble opinion. However, this is all pure conjecture right now, because it hasn't yet happened (as far as I am aware).

Regards
James Conaghan

 

[Whois-Search]

Nominet "thinks" it doesn't apply to them:

http://www.nominet.org.uk/disputes/courtcases/iTunes/

We do not think that it applies to us.

Interesting they use the term "think"..........

However the last Judicial Review case was rejected:

http://www.nominet.org.uk/digitalAssets/7887_iTunes-Judicial-Review.pdf

I express no view about whether the defendant is amenable to judicial review. Even if it is, this application should be refused because (a) there has been delay and (b) the Claimant failed to seek the alternative remedy available

 

[grandin]

incorrect

Of course the decision have to be based on law...you are getting confused. The contract does say rights not necessarily enforceable under law BUT that was referring to things like peoples names as domain names. Therefore where the law has or hasnt the drs must abide by the law. Prime exmaple is the ghd case....some may say that the original expert should have done the same as the appeal experts ie. return a verdict......the law hasnt decided so as an admin function we shouldnt decide. Some may say the original decision wasnt enforceable under english law cause it aint decided!!!

With the hush hush case we will have to wait and see but that might be another case!

Who's going to review all the 400 plus drs cases to make sure they were all enforceable under english...are you saying Trading Standards aren't going to?

Lee

 

[Jac]

Nominet "thinks" it doesn't apply to them:

http://www.nominet.org.uk/disputes/courtcases/iTunes/



Interesting they use the term "think"..........

However the last Judicial Review case was rejected:

http://www.nominet.org.uk/digitalAssets/7887_iTunes-Judicial-Review.pdf

Why is it interesting they use the term "think"? If a judge did not pay too much mind to the other party's contention that a judicial review was warranted (against Nominet) and the case was found it Nominet's favour anyway, wouldn't YOU "think" it didn't apply to you? I think the word think is entirely appropriate. No ifs, buts, or maybes, I just think Nominet is right to think it.

For the sake of clarity Clause 39 of the Terms and Conditions says:

This contract is made under the law of England and any court proceedings must be in the English courts. If you are a consumer in Scotland, Wales or Northern Ireland, we will accept your local law and courts. Enforcement of a court order may be done in any law or court system that is relevant.

I'd be happy for Trading Standards or any other statutory body to clarify whatever it is people are seeking clarification on but Nominet complies with Company Law and similar complaints have been made previously. I have said before, if Nominet were any other company, people would just treat it like the supplier it is per se, and leave the governance of the company to its members (QUA shareholders) and board. C'est la vie.

Regards
James Conaghan

 

[Whois-Search]

"I think it does not apply" is different to "It does not apply" ........ think means "it could do".

If Nominet keeps pissing people off like this with the DRS then it's only a matter of time before someone with £££££ takes them to court.

 

[Jac]

"I think it does not apply" is different to "It does not apply" ........ think means "it could do".

I can't disagree me ole cock sparrow; anything is possible.

If Nominet keeps pissing people off like this with the DRS then it's only a matter of time before someone with £££££ takes them to court.

There are not actually that many who have been pissed off. The DRS affects only a very small number indeed and it is bound to be controversial by its very nature. It is after all a dispute resolution service. The word dispute usually means someone won't be happy about something and, as I keep saying, anyone who loses a DRS ain't gonna be that happy anyway. That's understandable.

But that doesn't mean Nominet is wrong to offer it and it doesn't mean that anybody who feels the need shouldn't take Nominet to court if they think they have a case. I was just pointing out that to date, courts have usually found for Nominet. That ain't me being biased (which some people may think) it's just me stating the obvious.

Regards
James Conaghan

 

[domaingenius]

You would need to think carefully and concisely what EXACT claim you were considering against Nominet .It would be pointless going to the Court and simply averring that the terms & conditions were not fair. The Court would say "so what".

I still cannot understand, unless there is actually an ulterior motive, why Nominet wont allow someone like Patent Office to run the DRS.

DG

 

[Jac]

You would need to think carefully and concisely what EXACT claim you were considering against Nominet .It would be pointless going to the Court and simply averring that the terms & conditions were not fair. The Court would say "so what".

I still cannot understand, unless there is actually an ulterior motive, why Nominet wont allow someone like Patent Office to run the DRS.

DG

You'd have to clue me as to what ulterior motive you think there could be, cos I can't see why there would be one. Nominet has always offered a dispute resolution service of sorts; the DRS introduced in 2001 was a newer improved version of the old system.

As a matter of interest, the first decision under the DRS was handed down in December 2001. Eli Lilly owned a trade mark XIGRIS. A former employee registered xigris.co.uk. The independent expert appointed under Nominet’s DRS found that the former employee had not been justified in registering the domain and ordered its transfer to Eli Lilly. Factors taken into account included:

* The domain comprised a distinctive made up name
* It was identical to Eli Lilly’s trade mark
* The respondent was a former employee of Eli Lilly
* Eli Lilly had not given permission for the registration.

What I wonder about is this. If it has been in operation since September 2001 (and since 1997 in another form) why are people now so dead set against Nominet running it in today's much more convoluted webspace? It seems to me it is only since the advent of fora like Acorn Domains (a bunch of like-minded stakeholders debating stuff on a fairly subjective level) that these kinds of overt criticisms of the DRS have come to the fore. Is that because the DRS affects mostly domainers? Or didn't anybody think much about it until a couple or so years ago?

As an aside, I read somewhere today that the UDRP finds in favour of around 80% of complainants. Does that make the UDRP flawed too or is Nominet's DRS just a softer target? Go on, surprise me, be brutally honest with yourself!

There's an interesting viewpoint from Sept. 2001 (just after the new DRS was introduced) from Keiran McCarthy The Register which points out that Nominet has always run a Dispute Resolution Service of sorts since 1997. So it isn't that this is a new thing for Nominet, it's just that some people seem to have latched on to the differences between UDRP and DRS. Yet Kieran McCarthy (often an outspoken critic of Nominet) actually writes that ICANN could maybe learn a thing or two from Nominet and its DRS approach. You guys can make your own minds up.

Bearing in mind that Nominet itself does not actually make the decisions in DRS cases, I see no difference between independent Experts (a term I hate by the way) and the Patent Office resolving these disputes. Personally I think you might find a whole different set of criteria being introduced by a government agency but maybe that's a different problem.

I accept you do not feel likewise.

Regards
James Conaghan

 

[grandin]

patent office

the patent office is governement run. The experts who decide trade mark registrations do not earn their living from trade mark holders

Lee

 

[Jac]

the patent office is governement run. The experts who decide trade mark registrations do not earn their living from trade mark holders

Lee

Lee

The experts who decide DRS do not earn their living from trade mark holders either. For the sake of clarity, DRS experts are a mix of legal eagles and IT Experts. So why infer they earn their living from trade mark holders?

Regards
James Conaghan

 

[Whois-Search]

So who has the £750 + Vat or the £3000 + Vat ?

And if it went to court and P&G hired Tony Willoughby how much would he charge ?

Lawyers make more money than domainers from TM domains !

 

[Jac]

So who has the £750 + Vat or the £3000 + Vat ?

I'm actually getting tired of answering the same questions again and again and again and again and again and again and again.

As a Nominet Member you should actually know the answers to these questions. Indeed,you have discussed them enough on this forum and on nom-steer. However; for the sake of clarity; in the first instance the £750 goes to the DRS Expert who is deciding a case. In the 2nd, the £3k goes to the 3 appointed experts in the appeal. Nothing goes to Nominet itself.

Further to that, nobody can gurantee that a complainant will be a TradeMark owner. It is not Nominet or the Experts who bring a DRS case, it is some digruntled consumer or business so nobody can guarantee that they will not be involved in a DRS in the future; because anyone at all can bring a DRS if they feel they have justification for doing so and they may or may not hold a trade mark.

And if it went to court and P&G hired Tony Willoughby how much would he charge ?

That is completely off topic and nothing to do with my question to Lee Grandin. However, the quick answer is I don't know and I actually don't care because it has nothing to do with Nominet or the DRS and is another red herring .... which seems to be the penchant on this board.

Lawyers make more money than domainers from TM domains !

Once again this has nothing at all to do with anything I said.

The question to Lee Grandin was "The experts who decide DRS do not earn their living from trade mark holders either. For the sake of clarity, DRS experts are a mix of legal eagles and IT Experts. So why infer they earn their living from trade mark holders?"

How you get from what I asked to what you said is another of the great mysteries of the human psyche but it has no relevance to the question I asked of Lee. So stop wasting my time.

Regards
James Conaghan

 

[Whois-Search]

I knew where the money goes ...... I was merely showing that DRS experts do make money from TM's.

Also this board is open to everyone to post and reply to my comments - question/reply was not directed at you personally.

 

[grandin]

I didnt say that

The question to Lee Grandin was "The experts who decide DRS do not earn their living from trade mark holders either.

I didnt say they did..all I said was that:-

1 The Patent staff are employed by the government to examine and assess trade mark applications AND resolve trade mark disputes, they are NOT funded by Trade Mark holders

2 I asked for DRS experts to disclose how much of their companies business is derived from clients who hold Trade Marks

No assertion were made in this respect

My one year olds daughters grandad has made an assertion regarding Mr Ormand....but thats an opinion. I don't know why Mr Ormand picture isnt on the Nominet website and why me and whois cant find him on Hammonds website. My dad wants me to assert to Nominet but until I recieve that I cant comment further.

Lee