mercer.co.uk DRS

[Beasty]

I disagree slightly with stephen.

The mark mercer is a surname and company/business name(s)....there are many 'rights' holders linked to this name.

However its not generic in the sense its a common word/term.
Lee

I disagree slightly with Lee.

I think that mercer is a dictionary word; and so is generic.

Here's the defninition - it's a cloth merchant, quite like a haberdasher. My guess would be the surname comes from the occupation, like many others. Plenty of place names too - which I guess follows from the surname. Wiki says Dick Whittington and William Caxton were mercers; and that the Mercers are the longest established City livery company - both of which were news to me.

http://en.wikipedia.org/wiki/Mercer

http://www.answers.com/topic/mercer

Anyway, all of this pre-dates a firm of management consultants or whatever they are - and as the Respondent pointed out, they took their name from someone called Mercer.

 

[Beasty]

For me it was another response which, unfortunately, I didn't consider was particularly great. The Complainant, on the other hand, had clearly spent copious amounts of time preparing their complaint. The Respondent is known to have been a collector of domain names in the past and surely has the funds to employee appropriate legal counsel. In this particularly case it's something that the Respondent might have been better off doing. A strong response from a suitable representative prior to the DRS might have slowed the Complainant down for a moment or two. Alternatively, if the Respondent had no chance, they might have been better off negotiating some sort of settlement to stave off the DRS.

Respondent states that "mercer" has been adopted by numerous businesses in the UK, that there are more than 3000 .com and 244 .uk domain names containing the term and 523 others registered to individuals with the name "mercer". No annex detailing this was apparently provided. Complainant capitalised on this ommision in their Reply, stating that they have been unable to verify the truth in this statement (well they aren't going to assist the Respondent are they!).

Respondent claims that they did not register the domain name "for the purposes of selling, renting... to the Complainant or a competitor". Unfortunately putting up a "for sale" sign on the resulting web page doesn't add weight to that assertion.

Expert found it hard to believe that Respondent had never heard of the Complainant. That is possible but put "mercer" into Google and see what comes top. Combine that with the fact that Respondent is clearly not a lay domain name registrant.

Respondent claims that they registered The Domain Name along with a number of other surnames to offer email services. I saw no reference to any annex exampling the full list of surnames that Respondent had registered. So again, no weight added to Respondent's claims.

All in all a pretty weightless response. Perhaps if the Respondent had provided some backup to their claims of a planned email service or an explanation of why the domain name resolved to the chosen sponsored result, the Complainant might not have had such an easy time. The Respondent seemed to spend more time trying to rubbish the Complainants claim to the domain name rather than getting on with proving why they had rights in the domain name. If a Complainant has a registered trademark on the exact term, they have rights! Better get on with explaining why you do too, if you want to keep hold of the domain name.

Top post Invincible!

You refer accurately to how the DRS is applied by an increasing number of the Experts. However, the actual written DRS Policy actually places the burden of proof on the Complainant - so it should have to show that the Respondent's registration is Abusive; rather than the other way round, as is increasingly required by the Experts.

The Respondent should have accepted Complainant had "Rights" under the DRS - but focussed on establishing that they did not have monopoly rights. They should also have demonstrated that they had a right to the name - even offering to sell a "generic" for profit has been accepted by Experts in the past; whilst what you say about evidence of the suggested email service is also totally correct. Evidence, evidence, evidence!

One point though - Experts have shown themselves keen to use Google and other search tools (e.g. TM registry) in the past when a Complaint left out evidence to back up a claim. Curious that - in an even handed and fair system - the Expert showed no such search skills to verify (or otherwise) the Respondent's assertions here!

 

[Beasty]

Well of course they can, as can a multitude of uses, although it may depend on what the advertisements are for and if the content of the advertisements infringe on another entities rights. This has always been the case. It's nothing new.

If the ads are not for related services then this - and a few other recent decisions relating to "generics" - are a bit new. Certainly previously, unrelated PPC was seen as acceptable use for a generic. Assuming the ads were not pointing at related services - and I don't recall reading that they did - then I think this is a new development. I don't think it's an accident either....

 

[grandin]

take the point

Beasy I take your point BUT...

The experts work on 'the balance of probability'....did the respondent 'on the balance of probability know of your dictionary definition' his assertions clearly stated he knew of the name rights linked to mercer and then went onto offer it for sale with no evidence of preparation to use the name for email.

Lee

 

[Beasty]

Beasy I take your point BUT...

The experts work on 'the balance of probability'....did the respondent 'on the balance of probability know of your dictionary definition' his assertions clearly stated he knew of the name rights linked to mercer and then went onto offer it for sale with no evidence of preparation to use the name for email.

Lee

Hi Lee

Agreed "balance of probablity" is the standard of proof for any of the assertions made by either party.

However, the issue of whether a domain is "generic or descriptive" is a question of fact that is not for either party to prove - rather it is for the Expert to consider and decide. In this case, it is a pretty common English surname and also a dictionary word - so even if neither party pleaded it, I think the Expert should have addressed himself to it and decided it was "generic". It is not however "wholly descriptive" - so he was right to find that the Complainant had "Rights" and then turn himself to the question of abuse.

In any event, does not a common English surname satisfy the definition of "generic"?

"relating to or characteristic of a whole group or class"​

http://www.m-w.com/dictionary/generic

Beasty

 

[grandin]

rights

Yes Beasty BUT

As I said to Nominet....stating things like is not abusive to sell generic domain names is misleading.....If the name is generic it has no bearing IF you then go and unfairly take advantage of someoneelses right in that generic name...

The expert probably decided that the respondent took advantage of rights holders in general (please remember i think the remedy was wrong)....the respondent 'on the balance of probability' took unfair advantage of someoneselses rights....Nominet were clear to high light the following to me.....

Its not about taking advantage of someones rights its more taking UNFAIR advantage of someones rights

ie. MAYBE an email website would take advantage of rights BUT not UNFAIRLY as it would be offering a service to many rights holders

Lets face it........all is as clear as mud...........give the respondent a second chance to set up his email service

Lee

 

[Beasty]

Yes Beasty BUT

As I said to Nominet....stating things like is not abusive to sell generic domain names is misleading.....If the name is generic it has no bearing IF you then go and unfairly take advantage of someoneelses right in that generic name...

The expert probably decided that the respondent took advantage of rights holders in general (please remember i think the remedy was wrong)....the respondent 'on the balance of probability' took unfair advantage of someoneselses rights....Nominet were clear to high light the following to me.....

Maybe so Lee - but to be abusive the registration must take unfair advantage of the specific Complainant's rights - not the rights of a class of people or businesses. There is (not meant to be) any such remedy under the DRS. In common law it only exists in exceptional circumstances - e.g. the right of the champagne growers or Scotch whisky makers to sue as a "class".

Put it another way - let's say the domain was "smith" - and the Registrant was not called Smith and was not a blacksmith. Would it be abusive to say he knew it was a common name and he hoped that it would be of value to people called Smith or running a business with Smith in the name? Now if he'd reistered whsmith - as someone did pre-new-DRS - that might be different. Just as it should have been if this were mercerhr or mercerhotel or whatever - where there is a specific "target".

Anyway, I reckon we probably agree on whether we support this decision or not Lee!

 

[DaveBeasley]

With so many of us believing that a lot of recent DRS cases are flawed decisions, and that more and more respondents are being unfairly treated by larger business's, would it be plausible/possible to create some kind of 'mutual' user defence group to help put together replies to DRS cases that get brought against any of us on acorn.

It would be reassuring to know, not only for myself, that with so many of you with detailed understandings of how DRS cases have; and should be handled, could assist someone else in preparing they're own responses. I'd happily pay for that kind of service!

Cheers

Dave

 

[retired_member11]

THA - Tag Holder Association?

 

[NigelNigel is verified member.]

With so many of us believing that a lot of recent DRS cases are flawed decisions, and that more and more respondents are being unfairly treated by larger business's, would it be plausible/possible to create some kind of 'mutual' user defence group to help put together replies to DRS cases that get brought against any of us on acorn.

It would be reassuring to know, not only for myself, that with so many of you with detailed understandings of how DRS cases have; and should be handled, could assist someone else in preparing they're own responses. I'd happily pay for that kind of service!

Cheers

Dave

Dave, That's an excellent idea. Might be quite hard to put into practice though. Some portfolio's are stacked full of trademark domains and will be getting regular DRS letters. Others have carefully chosen domains and DRS issues will be rare, but decisions like finecheeses.co.uk means that even the best quality portfolios will need DRS assistance at some time in the future. It would be good to see bad DRS decisions appealed and overturned on a regular basis but there may even be legal implications in joining together in a mutual and giving mutual assistance in DRS cases. Perhaps beasty could enlighten us.

 

[gordon]

...and if the current PAB does nothing?

The sanction is to vote them off one by one. A candidate wishing to be elected on this issue simply needs to publish a manifesto declaring the present DRS process faulty and in need of a revamp. Then we will see from the voting just how much of an issue DRS Decisions are to the electorate. Some on the PAB need removing generally due to their overly compliant attitudes.

Interesting take on it. I've never experienced the PAB to be "overly compliant" with anyone. I think it is true to say there are some PAB members who have a negative view of the type of business members of this forum are in which might be why there is more antagonism here than need be. I think that is unfortunate. I think this can be overcome without antagonism and achieve a better DRS in the DRS review from everyones stand point.

I'd encourage you not to view either the PAB, Board or Nominet as the enemy (even those individuals that disagree with you) as all that happens at present is they are working within the framework that resulted from public consultation. It is time for a new DRS consultation and set out the framework to use moving forward. If you work with the PAB, Board and Nominet you are likely to be able to have many of your issues addressed in the review.

There are many good points made on this forum about the DRS from time to time, I should also say there are also many comments that don't justify even discussion as they descend into attacks, etc. I really hope the good points do get distilled into submissions to the review.

What the DRS needs is oversight of Decisions vis-a-vis the wording of the Policy. Experts have to be told to go away and think again if they have clearly misinterpreted the wording. The wording is quite precise. Otherwise 'disrepute'.

You are looking for a sort of "quality control" mechanism? Something like that sounds like a good idea, not sure if the PAB is the body to do it for a number of reasons but the idea is very worth exploring.

Gordon

 

[Jac]

Interesting take on it. I've never experienced the PAB to be "overly compliant" with anyone. I think it is true to say there are some PAB members who have a negative view of the type of business members of this forum are in which might be why there is more antagonism here than need be. I think that is unfortunate. I think this can be overcome without antagonism and achieve a better DRS in the DRS review from everyones stand point.

For the record; the difference between PAB members and Nominet Board Members is that the Board has to act in the best interests of Nominet (the company); the PAB has to act in the best interests of the wider stakeholder groups. What you have just suggested is that personal opinion equals negative view but personal views are immaterial to the PAB who must discuss and rationalise a thing to the benefit of the wider stakeholder communities. The only antagonism on this list is to do with disagreement on a personal level, it has nothing to do with PAB views nor IMO should it. The PAB is representative of all stakeholders; conversely the Board is not; it is representative of The Company.

It is therefore disingenuous to even hint that views expressed by any individual PAB member on this forum are representative of the PAB; they are not; they are representative only of the individual.

Regards
James Conaghan

 

[gordon]

What you have just suggested is that personal opinion equals negative view but personal views are immaterial to the PAB who must discuss and rationalise a thing to the benefit of the wider stakeholder communities.

I never suggested personal views were material but they do however effect how external people see the PAB, whether they are right or not is another matter.

The only antagonism on this list is to do with disagreement on a personal level, it has nothing to do with PAB views nor IMO should it.

From comments made on this forum, I'm not convinced everyone sees it that way.

It is therefore disingenuous to even hint that views expressed by any individual PAB member on this forum are representative of the PAB; they are not; they are representative only of the individual.

I have not, and never would suggest that, or even hint it.

Gordon

 

[Jac]

I have not, and never would suggest that, or even hint it.

Gordon

This is what you wrote and what seems ambiguous to me.

"I think it is true to say there are some PAB members who have a negative view of the type of business members of this forum are in which might be why there is more antagonism here than need be."

But thanks for clarifying you would not and never would suggest it. :???:

Regards
James Conaghan""

 

[retired_member11]

... but James, I am wrong in having gained the impression that you don't entirely see eye to eye with the dropcatcher model of registering domains? Please do correct me if I have misinterpreted your previous posts.

 

[Jac]

... but James, I am wrong in having gained the impression that you don't entirely see eye to eye with the dropcatcher model of registering domains? Please do correct me if I have misinterpreted your previous posts.

Most of my previous posts on the subject have been based on what other stakeholders or stakeholder groups have told me. Whether I entirely see eye to eye with you or the dropcatcher community is actually of little consequence in the greater scheme of things where consensus is all important (at least, to me). The PAB is a melting pot of ideas from the wider communities; it doesn't exist to admire itself or its own viewpoints. I may exist to admire myself and my own viewpoints but I don't actually matter in the greater scheme of things.

In the greater scheme of things my opinion is only mine whether we disagree or not, and yes, there are things I disagree with on this forum and in relation to dropcatching and domaining but then I have said so; so it isn't like I'm being duplicitous, is it? Much of what I disagree with is the attitude of some dropcatchers and domainers (NB: I say some, not all) which suggests to me that other stakeholder groups don't count in their thinking and just as you may find it offensive that I disagree with you or your own thinking, I find it offensive that the rights of the majority are sometimes overlooked as irrelevant. (At least it seems that way at times.)

However, I am as much a minority on the PAB as the dropcatching and domaining communities are in the greater scheme of the wider communities and it is the wider communities and all the associatied differences of opinion that I believe I have to consider as a PAB member (but it is the 'collective' that makes recommendations, not the individual).

I have often said on this forum that Nominet regards dropcatching and domaining as a legitimate business model. As long as that is the case, the PAB is bound to listen and take the comments and suggestions of Acorn Domainers into consideration and as Gordon just said, Acorn has made "many good points".

The PAB is a melting pot of ideas and communities but there are some things the PAB isn't, like an arbitrator or regulator, and some people seem to think the PAB has more authority than it does. The PAB advises on policy and it does so to the benefit of the collective (as in the wider stakeholder communities). It cannot regulate or admonish Nominet although Nominet has often said it would be highly unusual for the board to reject the advice of the PAB. I like to think this is because Nominet acknowledges the PAB represents the views of all stakeholders.

I know that's more than you wanted to know, but some questions are not just a simple "yes" or "no" answer.

Regards
James Conaghan

 

[grandin]

We agree

I totally agree with your assertions....the policy wasn't followed...ie. it is doubtful that the respondent specifically had the complainant in mind....he was probably out to register surnames....

So yes beasty the decision doesnt follow the policy in respect of the examples given in the policy BUT don't forget the policy allows such decisions....for instance 3.a.....says MAY

This is why the contract is misleading.....everyone is relying on whats written in 3a BUT the Policy allows for the Expert to rule outside this.

Most interesting about this case is that it technically contradicts the GHD Appeal decision.....The Panel said that LM by offering to sell the name for £20k did not take UNFAIR advantage off the complainant....in the same way a general for sale sign doesn't take UNFAIR advantage off the complainant.

As clear as MUD

I have now contracted two top journalists with some web work....may write a book one day....'How to get in SH*T in 30 days.....buy a domain name'

Lee