ghd.co.uk appeal decision

EdPhillips · Mar 1, 2006

Again, a decision that may be of interest to those on this board, given that there was some comment about the first instance decision.

ghd.co.uk (Appeal) - DRS 03078

domaingenius · Mar 1, 2006

Hmm "page not found"

DG

EdPhillips · Mar 1, 2006

domaingenius said:
Hmm "page not found"

DG

Not sure why that link didn't work, sorry. Follow the links from this page:
http://www.nominet.org.uk/disputes/drs/appeals/

rob · Mar 1, 2006

GHD.co.uk decision overturned for the lazy who cant read

Classic bit:

Chris Holland being provoked into directing a deplorable stream of abuse at Lee Grandin following the latter’s upping of the price from £5,000 to £10,000 and then £20,000.

Is there a Nominet 'abuse' ranking scale?!

domaingenius · Mar 1, 2006

Yes interesting. So please may I ask Ed, do DRS decisions ,especially Appeals which have of course considered the facts twice, act as a type of precedent in future DRS's , and do they have to be taken into account in making future decisions , or can it be totally disregarded in future decisions ??.

DG

EdPhillips · Mar 2, 2006

domaingenius said:
Yes interesting. So please may I ask Ed, do DRS decisions ,especially Appeals which have of course considered the facts twice, act as a type of precedent in future DRS's , and do they have to be taken into account in making future decisions , or can it be totally disregarded in future decisions ??.

DG

DRS Policy 10(c) - Appeal decisions will not have precedent value, but will be of persuasive value to Experts in future decisions.

domaingenius · Mar 2, 2006

EdPhillips said:
DRS Policy 10(c) - Appeal decisions will not have precedent value, but will be of persuasive value to Experts in future decisions.

So in future DRS's the expert does not have to take into account any other previous DRS's or Appeals from decisions ?. If that is the case it kind of works against good sense in that lets say the appeals panel has said that XYZ does not amount to abusive registration ,the next DRS expert or Appeals panel can say yes XYZ does amount to abusive registration . It surely is contrary to good sense to not allow build up of precedents so people know where they stand ?

DG

meinthecorner · Mar 2, 2006

I agree about the precedents set by previous DRS's. It doesn't really make much sense and possibly causes the confusion about the varying results of the DRS procedure.

EdPhillips · Mar 2, 2006

domaingenius said:
So in future DRS's the expert does not have to take into account any other previous DRS's or Appeals from decisions ?

The civil courts use a strict system of precedent, so that, for example, the Court of Appeal decision in the One in a Million case binds all High Court judges in domain name cases - even if the judge involved thinks that perhaps the specific facts of the case suggest otherwise, unless that judge can say that the case is so radically different to the others that he doesn't have to follow it.

The DRS Appeals are designed to be pursuasive, but not binding so that experts retain freedom to decide each case entirely on the facts. You will note, if you look through cases, that experts will refer to and follow appeal decisions - possibly the most quoted is the appeal decision in seiko-shop.co.uk with their phrase that the rights test is "not a particularly high threshold test".

Individual DRS decisions are not binding, but can be referred to - and the recent "webservers.co.uk" decision, which is mentioned on another thread here, is a good example of an expert referring to other first instance decisions for inspiration, if I recall correctly.

Finally, I should point out that I personally believe that if matters are decided in appeals, it is helpful for them to be put into the policy/procedure for the longer term, to reduce the need for parties to read past decisions. You will note that the 'no coming back' rule from the bravissimo.co.uk appeal now appears in the appeal rules in the policy/procedure, and that approach is likely to continue.

domaingenius · Mar 2, 2006

EdPhillips said:
Finally, I should point out that I personally believe that if matters are decided in appeals, it is helpful for them to be put into the policy/procedure for the longer term, to reduce the need for parties to read past decisions. You will note that the 'no coming back' rule from the bravissimo.co.uk appeal now appears in the appeal rules in the policy/procedure, and that approach is likely to continue.

OK that would be good. In that case, according to the ghd decision then,
9.3 onwards and particularly 9.3.16 (and as would be pleaded in the High Court if the matter was a legal case) any breach of trademark claim for a domain name should go through the Courts and NOT through DRS. That is what it says.
OK so in future that that means that registration of a trademark name and attempts to sell such domains to "a" trademark holder is NOT abusive. I think that this decision will cause problems for Nominet if they ever decide a future case in a way apposite to the ghd case. Lets see what actally happens.

DG

ratboy · Mar 3, 2006

As a local company to me, I know that GHD grew out of a very small warehouse in a posh residential area. I have several friends who have worked their throughout their super-quick rise up the growth curve.

This DRS is the lawyers doing, which probably came out from the marketing company which ghd have to thank for their success.

It'll match the bosses wifes private plate on her Range Rover anyhow.

EdPhillips · Mar 3, 2006

domaingenius said:
OK that would be good. In that case, according to the ghd decision then,
9.3 onwards and particularly 9.3.16 (and as would be pleaded in the High Court if the matter was a legal case) any breach of trademark claim for a domain name should go through the Courts and NOT through DRS. That is what it says.

No, not quite. It says that, for certain very technical trade mark infringements, the DRS is inappropriate. It does not say that "any" trade mark case should be for the courts not the DRS.

domaingenius said:
OK so in future that that means that registration of a trademark name and attempts to sell such domains to "a" trademark holder is NOT abusive. I think that this decision will cause problems for Nominet if they ever decide a future case in a way apposite to the ghd case. Lets see what actally happens.

DG

Remember, Nominet doesn't decide any of the cases, and appeals are not binding (see 10(c), as discussed).

Also, I suspect that your interpreation of the case is a bit general - the panel is specifically picking on the situation where there was no abuse at registration, and later there is only an offer to sell to the rights holder or the rights holder's authorised distributors - which is a rather specific lacuna. They do not suggest that sale to competitors would be acceptable.

domaingenius · Mar 3, 2006

EdPhillips said:
No, not quite. It says that, for certain very technical trade mark infringements, the DRS is inappropriate. It does not say that "any" trade mark case should be for the courts not the DRS.

Clause 9.3.16 reads, quote "If what the respondent has done amounts to trademark infringment (and the panel is by no means certain that it does-the UK case law on the subject is largely if not exclusively in relation to domain names which have been registered with abusive intent) the court is the proper forum for determining the issue , not an administrative proceeding under the Nominet DRS"

OK my reading of that ,if I was referring to this as case law to a Court would be that the precedent had been established by the C of A (in this case the appeal panel of the DRS) that the Nominet DRS is not the correct forum for any claim involving trademark infringment. Therefore in a Court of law it would be very hard for a complainant to use "trademark infringment" contentions in any part of the claim (DRS) no matter what they were trying to prove.