20i Domains

Good idea for Nominet ?

Discussion in 'Nominet General Information' started by domaingenius, Apr 5, 2006.

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  1. domaingenius

    domaingenius Well-Known Member

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    I was wondering whether Nominet might consider outsourcing their DRS to the new Patent Office mediation service just started. It would make plenty of sense both from appearance of independence and having someone doing it that knows much more about IP/Trademarks;
    http://www.patent.gov.uk/media/pressrelease/2006/0304.htm

    It cannot surely be in Nominets interest to continue to act as a growing Court house for DRS ,and then can get on with better things.

    DG
     
  2. Domain Forum

    Acorn Domains Elite Member

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  3. bb99 United Kingdom

    bb99 Well-Known Member

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    It's certainly an interesting idea... perhaps throw it to the dogs on Nom-Steer and see if they slobber and wag their tails :rolleyes:
     
  4. Jac

    Jac Active Member

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    Why do you feel the Patent Office mediation service would be better than the current DRS? Have you been through the fee structure etc? Here's a link: www.patent.gov.uk/about/ippd/mediation/pomed.htm.

    Whilst it seems obvious a number of people on AD don't trust the DRS to be impartial, I'd be grateful to know if it is simply because some decisions go against the domainer community, or for other reasons?

    I think the DRS system is possibly misunderstood by some on AD. Whilst Nominet is involved in the informal stage (the mediation stage) if that fails to bring results, Nominet passes the matter on to an independent Expert who makes his/her judgement based on the facts presented by both sides.

    Surely this is more or less the same as the Patent Office mediation service?

    Regards
    James Conaghan
    http://www.conaghan.me.uk
    james@conaghan.me.uk
     
  5. Jac

    Jac Active Member

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    I have just thrown it to the aforementioned dogs and will let you guys know if there any comments. :p

    Woof Woof!
    James Conaghan
    http://www.conaghan.me.uk
    james@conaghan.me.uk
     
  6. Michael Penman

    Michael Penman Member

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    I don't get it.

    It seems to be a system where the parties pay for telephone mediation with CEDR accredited mediators (at least one of who is already an independent expert under the DRS).

    Nominet's system offers free telephone mediation with CEDR registered (one up from accredited) or accredited mediators.

    Given that someone like CEDR provides the professional framework/code of conduct in both cases, I don't get the 'neutrality' argument either.

    ???

    ----------------------
    Mike
    http://www.ebuyersucks.org
     
  7. Beasty

    Beasty Active Member

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    Nothing wrong with the mediation stage at Nominet - though I think it should logically go earlier in the process - before the effort of full pleadings/argument has taken place. The problem with the DRS is the rest of it!

    Interesting domain Mike - care to elaborate? Beware their ADR - or do you have diplomatic immunity? ;)
     
  8. Michael Penman

    Michael Penman Member

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    .org protest site

    One of the reasons it's .org, not a .org.uk is to make absolutely sure that if they wanted to complain (using the UDRP), the whole thing would be absolutely fair and neutral.

    I'm a great believer in fair and neutral.

    Edit: Agghh! The site's down. How did that happen? Thanks for bringing to my attention...
     
    Last edited: Apr 18, 2006
  9. Jac

    Jac Active Member

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    Pleased to see your reference to "fair and neutral", however; fair and neutral is hard to achieve in any adversarial system. Given that Beasty thinks the rest of the DRS is the problem, I have to suggest the problem lies not with the DRS itself, but with subjective perceptions of "fair and neutral".

    In reply to Whois-Search (on nom-steer); who was questioning how hard it would be to get to a "totally fair FCFS model"; I wrote the following reply. It applies to the DRS too.

    There can never be such a thing as a "totally fair" adversarial system; someone has to lose. The loser will always resent having lost, and hence, will never regard the decision as "fair". No matter who judges these matters (court of law or DRS expert) you will always have someone crying "unfair". A more appropriate term might be "equitable" because this could be regarded as a "just and impartial" model.

    The DRS is as equitable as you will get outside a Court of Law. (That doesn't mean we shouldn't try to constantly improve the system, just as parliament constantly tries to improve The Law.)


    As it happens, you don't actually have to accept the DRS as the mediator; you can always tell the other side you'll see them in court. The catch22 is this; it'll end up costing you an awful lot more in legal fees by the time the dispute is over no matter who wins or loses.

    It's much too easy to criticise an existing system without thinking through the repercussions of using an alternative.

    Regards
    James Conaghan
    http://www.conaghan.me.uk
    james@conaghan.me.uk
     
  10. Beasty

    Beasty Active Member

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    One of the (several) problems is that the parties can go to Court at any time - something that is more often than not relinquished when parties agree to proper and fair arbitration/ADR. In truth what that really means (both because of the typical profile of the parties and the rights of action available in the Courts) that the Complainant retains the right to go to Court and the DRS is a "shot to nothing" in snooker terms - nothing to lose and everything to gain. The game.co.uk is a prime case in point - xenical.co.uk another less high profile one.

    I have to say I also disagree with you about being fair etc.. It can certainly be an ambition - and can even be an obiligation. Take a look at s1 of the Arbitration Act -

    The provisions of this Part are founded on the following principles, and shall be construed accordingly-

    (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;
    (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;
    (c) in matters governed by this Part the court should not intervene except as provided by this Part.

    What's wrong with being obliged to be fair to both parties?
     
  11. Beasty

    Beasty Active Member

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    Never doubted you're "fair and neutral" for a minute Michael! ;)

    Of course under the UDRP they'd have to show both bad faith registration and bad faith use - not either/or on registration/use, without the need to show bad faith....

    Looking forward to seeing what the complaint is...
     
  12. Jac

    Jac Active Member

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    I didn't say there was anything wrong with it; I simply substituted the word "equitable" in place of fair ... because I thought it was er ... more fair! ;)

    Other than that we could argue semantics ad infinitum but it won't change what exists in terms of DRS, arbitration, or legal system, and one can only work within a given system to try and change it for the better; but I still do not believe you can ever be truly "fair" to both sides, when all of these systems requires a winner and a loser. Is losing fair? Subjectively it isn't; and I'd say it would be damned hard for a loser to think he/she has been treated fairly.

    The point is, arbitration or court of law, there's a winner and loser. If you can change that outcome, I'll be happy to agree with your logic. :)

    Regards
    James Conaghan
    http://www.conaghan.me.uk
    james@conaghan.me.uk
     
  13. Whois-Search

    Whois-Search Retired Member

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  14. Beasty

    Beasty Active Member

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    LOL! :mrgreen: :-D :mrgreen: :-D
     
  15. Beasty

    Beasty Active Member

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    I'm not sure the prmise of your submission is right. Yes - if the matter gets to a final decision - there will be a winner or loser. But that does not necessarily mean that the loser either was (objectively) or feels (subjectively) that the system was unfair. One can win or lose and still feel that the "game" was fair.

    Problems arise when the rules of the game - and the application of the rules - appear to be unfair. It also does not help when the system makes no reference to fairness and those that set it up seek to avoid being bound by the Act of Parliament that governs these things - which at the first opportunity sets out a requirement to be fair. Again I ask, why does Nominet seek to avoid that duty?
     
  16. Jac

    Jac Active Member

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    You are entitled to your opinion but lest we forget, that's all any of this is; opinion. However, yours is flawed for 2 reasons.

    (1) Arbritration, on any level, does not need to make specific reference to fairness because the essense of Arbitration is that it allows all parties to a dispute to submit their differences to the judgment of an impartial person (or group) appointed by mutual consent or statutory provision. In this instance, the opposing factions are not cajoled or trapped into the DRS, they have to consent to use it at the outset. Given that, I don't think it is too much to ask that those who consent to use it, have the good grace to accept the mutually consented to decision.

    (2) Nominet does not seek to avoid its duty but it cannot possibly account for every single solitary difference of opinion in the community it serves. You are entitled to your opinion but in mine, you are wrong. You have neither proven your contentions or offered any realistic evidence to support them (all you have said is that the system is unfair) and as I said before, if and when you do, I'll be happy to accept your logic. ;)

    Regards
    James Conaghan
    http://www.conaghan.me.uk
    james@conaghan.me.uk
     
  17. Beasty

    Beasty Active Member

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    But Nominet say that the DRS is NOT arbitration - that's not opinion, it's what they say. My opinion is that they are wrong and the DRS is an arbitration. You seem to agree that it's arbitration.

    Nominet say that it is "Expert Determination", whatever that is. Now an "expert" is liable for negligence when carrying out his role in litigation - say a surveyor giving a view on a property problem as an expert. An arbitrator is not liable for negligence. To cover that, the DRS has dropped in the relevant section of the Arbitration Act (on Counsel's advice) to protect the "experts" as though they were "arbitrators". Handy for them, not so handy for the recipient of an obviously flawed decision, whose rights against the expert/arbitrator may have been restricted.

    Besides which, if there were no need to spell such things out, why is it that the relevant legislation does just that in Section 1? :???:

    You asked for evidence. I have plenty, but I don't thing that this is the right time or place for airing it.

    For starters though, even the UDRP requires that the rights that the Complainant is relying on pre-date the registration of the domain - since the UDRP requires both bad faith registration and bad faith use. The DRS does not - see the 1and1.co.uk cases as clear examples where the Complainant went off to apply for a some TMs and then came back to succeed in their claim. Please give me one other IP rights forum that does not require the Claimant to prove prior rights in order to succeed.

    As a supplementary, why did the DRS drop the need to show bad faith (a higher hurdle) during the drafting phase; and also uniquely go for the either registration or use options on infringement - as opposed to both?
     
  18. Jac

    Jac Active Member

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    You are going to have to point me to where Nominet says the DRS is not arbitration. However, I can't see why it would matter what the terminology is, the DRS is a Dispute Resolution Service. It exists as a service to assist parties when the registration or use of certain UK internet domain names are disputed. Whether you (or Nominet) choose to call it arbitration or not, it does what it says it does; solves disputes. Apparently you don't like the way it solves them, but that's a completely separate issue.

    And what do you think it is, other than what it says on the tin? Are we now in the realms of rewriting the dictionary?

    What bemuses the heck out of me is that even when they are spelt out, it seems some people would rather ignore them anyway than live up to their responsibilities. If you actually looked at this issue objectively, you might begin to see the incongruity in your own arguments. For instance, when you register a .uk domain name you enter into a contract with Nominet UK. It's quite simple really, if you don't want to honour the contract, don't register the domain name. However, if you do register the domain name Nominet asks you to do certain things under said contract. For instance, the Terms & Conditions of Registration Clause 37 states: "This contract is a legally binding document. You should read it carefully and make sure that it contains everything you want and nothing you are not prepared to agree to."

    The relevant part (in case you missed it) is "nothing you are not prepared to agree to". So when you continue to make comments like "whose rights against the expert/arbitrator may have been restricted" I have to refer you to the contract that each and every registrant signs up to when registering a .uk domain name. Part of that contract is inclusive of the DRS but it still isn't binding if you don't want to use it. People are free to go straight to court with their disputes, the DRS quite specifically states it does not replace the Courts. It is only when both sides agree to use it in the first instance, that Nominet asks them to accept the decision made.

    Pass. I did not write the DRS. And whilst I am happy to listen to valid criticisms of it and even try to change it for the better I fail to see any substance in comments like "I don't thing (sic) that this is the right time or place for airing it". There's a difference between evidence and hearsay and there is no more appropriate place to air your evidence, if you have any, than in the middle of a tete-a-tete that requires it. Otherwise we're just left with hearsay and you're full of it (and not just hearsay). ;)

    Regards
    James Conaghan
    http://www.conaghan.me.uk
    james@conaghan.me.uk
     
    Last edited: Apr 19, 2006
  19. Beasty

    Beasty Active Member

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    Ask Ed Philips if you do not accept that Nominet are quite unequivocal on the point. It's not true to say that I don't like the way the DRS solves a number of problems - I'm just not a "born again" believer who takes everything it does on faith. I think it has a number of good points and a number of serious issues that are not being adressed.

    The difference is massive. It decides whether or not the DRS is bound by the guidelines set by parliament for an arbitration or not. If it is then e.g. it has a duty to be fair, limit the parties recourse to the Courts (which I think we may agree they should limit if they choose ADR instead, they should not have a chance to have their cake and then eat it) and so on. If not, then a private monopoly controlled by a handful of ISPs can set its own ADR rules. There has been plenty of litigation on just this sort of point - because it makes a big difference to the governance of the system.

    Also what it "says on the tin" is not the whole answer - again this is clear from litigation in the field. Whatever you call something, its what actually happens that ultimately determines what it is. I am not aware of any formal definition of Expert Determination of this type; since Expert's usually only deal with certain points, rather than the whole matter. To that extent it is an attempt to define something afresh. I would say "a rose is a rose by any other name" and it is an unsuccessful attempt at rebranding a paper based arbitration system.

    Give people a choice as to where they register their .uks and then you can say that they are volunteers to the DRS, rather than conscripts. Open Nominet up to competition, like any other private company, and it can seek to impose any lawful conditions on its registrants that it likes. If you want to remain a monopoly, then please don't use the spurious argument that consumers are choosing to be subject to the DRS. The choice now is Hobson's Choice - if you want the domain you take the contract that goes with it, otherwise relinquish the domain.

    Going to Court requires a right of action. What right of action would a Registrant normally have against a Complainant? "They think they are entitled to my domain and have taken/may take DRS/ADR action against me" does not fall that obviously into any class of tortuous liability. So in truth the right to go to Court - which as you say is unencumbered by the DRS - lies mainly/only with the Complainant - as excercised in cases such as game.co.uk.

    I did not mean to be rude. I was concerned that we appear to be having a dialogue on a public message board that no one else is taking part in. Also I have duties to third parties that prohibit me from disclosing things on a public message board.

    I am not sure where your claim of hearsay comes from. I refered you to things that are in the public domain. The removal of the "bad faith" requirement, the enforceability of rights acquired post-registration and the 1and1.co.uk decisions are on Nominet's website.

    The fact that the UDRP requires two hurdles to be overcome by a complainant - where Nominet needs only one - is to be seen in the respective Policies.

    I asked you to explain why it was right that the bar in the DRS is set lower than the UDRP; and why the DRS is the only IP rights forum I am aware of where a complainant can acquire rights after the event and then use them to obtain a remedy. From some of your earlier comments - and the fact that you are on the PAB - I'd hoped for a bit better than "Pass".

    BTW - you spotted a genuine typo. Removing a whole sentence is rather more than a "typo" everywhere except the DRS - as we were told on these boards re. sundecksvip.co.uk - even though the provision allowing Nominet to change Experts Decisions after they were handed down was removed at the drafting stage of the DRS. Again, that's on their website, not hearsay. ;)

    James - maybe we should just agree to disagree on how wonderful (or otherwise) the DRS is; and the Nominet/private company/monopoly situation. If we actually met and spoke we might find that we were not so very far apart on some things! :cool:
     
  20. Jac

    Jac Active Member

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    If Ed Philips said that, I bow to his opinion; IANAL and he is. However, my motivations are community oriented rather than legally pedantic and as I have always said, legal opinion is open to interpretation too! That's why lawyers (and judges) make the big bucks! The law is not just, it is just legal.

    Once again the word "fair" enters the arena and I still cannot see why you regard the DRS as not fair. Both sides get to put their written submissions, both sets of submissions are studied by an independent Expert, and a decision is made on the evidence presented by both sides. Isn't that (in its simplest form) how arbitration and the Courts work? And yes, I know it's more convoluted than that in practice, but sometimes you have to oversimply a thing to make a point.

    If you are suggesting that Nominet is a private monopoly, the OFT disagrees with you. If you are suggesting Nominet is controlled by a handful of ISPs setting their own rules, this is not true either. Just as Nominet is mandated to consult with the wider stakeholder communities on issues that affect them, it is also mandated to consult with all members before making any changes to the constitution. Nothing stays the same; progress is inevitable; but not all progress is a good thing. Personally I believe the problems that were encountered at the recent EGM (both on the board's side and big members' side) were just a matter of communication; or the lack of it. These issues are being addressed and should be resolved to the benefit of the internet community we serve.

    In any domain extension there is one Registry and a bunch of registrars. The contract terms may differ between the different Registries and Registrars but in general that's how things work. What you seem to be suggesting is that other Registries be created to offer people a choice as to where they register their .uks? If you create more than one Registry you will have more than one WHOIS database and I can see all sorts of problems with cross-referencing of names registered or due for renewal. A Registry is a registry and doesn't compete per se. Registrars are the entities that compete and offer choice.

    Any Registrant has the right to take their own issues to court. They may have to prove legal right or "right of action" to the Court before proceeding, but that's just an aspect of English Law. However, just because a complaint starts in the DRS, it doesn't override anyone's legal rights.

    Feel free to off-list me. james@conaghan.me.uk.

    I passed because I couldn't possibly outguess (in seconds) what it took a whole legal team months to write. However, most of the arguments you offer are biased in favour of one special interest group but Nominet is mandated to act in the interests of the wider stakeholder communities.

    The following is my personal opinion.

    The rights you say are acquired after the event are actually acquired as soon as a dropcatcher or domainer (or anyone) registers a domain name that resembles, misspells, or otherwise plays, on someone else's trading name, business identity, or trademark.

    Dropcatchers and domainers know exactly why they register these domain names and to feign indignation when they are caught, lacks a certain authenticity. If you are going to abuse a system from the outset, please have the good grace to accept there may be repercussions if you are caught abusing it and please do not tell me that registering thousands of domain names that are common misspellings and sometimes downright plagiarisation (eg: lambertandbutler.co.uk) is not abusing the FCFS system!

    There is more than a tad of irony in the moral highground being hijacked by people whose business lives are spent making money out of domain names they have registered as part of a capitalistic portfolio. Nothing wrong with making money per se, but don't feign indignation when (what may be) a more righteous registrant comes along and objects to you using a domain name they may righteously feel is misdirecting people to PPC websites (for instance).

    I am not going to get involved in discussing the intricacies of a specific DRS decision except to say this; Nominet per se did not and cannot change an Expert's decision. Nominet has no authority over DRS Experts who are entirely independent of the Registry; and facts do not cease to exist because they are ignored! ;)

    I never said the DRS is wonderful, I have said it needs reviewing and I expect once the current review is complete it will be presented to the PAB by the Executive. Until then I can't offer any constructive comment because I don't know what changes they may propose.

    Having said all the above, I'll conclude by saying this. The dropcatcher and domainer community are stakeholders too and deserving of my consideration. However, I think they should have the kahoonas to accept the anomalies in their modus operandi when viewed by the rest of the community. The thing is; consideration is a two-way street. If you wish to enjoy it for yourself you must be prepared to extend it to everyone else whatever their creed, persuasion, or race, and no matter whether you disagree with them or not. So whether I agree or disagree with you or the dropcatcher/domainer community, I acknowledge their rights to "fair" treatment in terms of FCFS and DRS. My reservation is this; do they acknowledge they have as much responsibility to the rest of the community as they demand for themselves? (It doesn't seem so in terms of what you say about the DRS.)

    What is popular is not always right, and what is right is not always popular. ;)

    Regards
    James Conaghan
    http://www.conaghan.me.uk
    james@conaghan.me.uk
     
  21. aqls

    aqls Well-Known Member

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    Most caught/registered domains are not tm or brand.

    They are a limited commodity for which many people will attempt all things in order to get them when they find they are too late to register them.

    Sounds like you've broadbrushed all of us. Have we seen your true colours JAC?

    Avoid.


    -aqls-
     
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