Jac said:
I can't see where the NZ policy gives a complainant 3 years to make the complaint? The clause referred to by "mr rusti" 5.4 reads:
In making their decision, the Expert shall not take into account any evidence of acts or omissions amounting to unfair registration or use which occurred more than three (3) years before the date of the Complaint.
Doesn't this just refer to not taking into account other "acts and omissions amounting to unfair registration or use which ocurred more than 3 years before"? The previous clause refers to the respondent's behaviour patterns in the previous 2 years; but clause 5.4 doesn't seem to imply there is any form of statute of limitations per se. IANAL, so maybe you can clarify that point for me?
I'm not a NZ lawyer, but reading Clause 5 along the lines of the DRS:
NZ 5.1.1-5.1.5 - the Non-Exhaustive List of factors indicating "Unfair Registration" = roughly to DRS 3(a)(i)-3(a)(v) non-exhaustive list for "Abusive Registration"
NZ 5.2 - Failure to use not of itself evidence = DRS 3(b)
NZ 5.3 - Presumption following "3 strikes" rule = DRS 3(c)
NZ 5.4 has no equivalent in the DRS. It says that "the the Expert
shall not take into account
any evidence of acts or omissions amounting to unfair registration or use
which occurred more than three (3) years before the date of the Complaint."
Now I read each sub-section 1 through 4 as seperate and independent. 5.4 says that (my emphasis added above) that any evidence that arose more than three years before the Complaint was filed must be ignored by the Expert. It says they "shall not" take it into account - so they have no discretion.
The absence of capitals for "unfair registration" is unfortunate - since it is a defined term that should either have capitals or should be avoided if that is not what was meant. However, referring to the defined term - it equates to "Abusive Registration" in the DRS - so anything that may have been Abusive/Unfair "shall not" be taken into account if it occured more than 3 years previously.
That means that the act of registraion - (i) of the two heads defined in both NZ procedure and the DRS - ceases to be live 3 years after the registration took place. Full stop - unless and until the domain is transferred.
Likewise any "use" made of the domain that pre-dates the Complaint by more than 3 years can not form part of a valid complaint. Query the issue of use that may be an ongoing tort - other e.g.s include false imprisonment, squatting on land - though I personally think that such an argument would be more suited to a Court than a DRS system.
So it seems to me that there is clear line in the sand being drawn by the NZ draftsmen - take action within 3 years of the act you are complaining about or lose your right to use the dispute system - though of course they may still have a right to go to Court. Ed was involved in the drafting, so he can (and no doubt will!
)correct any mistakes I may have made.
Jac said:
I would respectfully suggest that China is not a good example to be expounding upon. It seems a tad incongruous to me that one can raise a domain name dispute at all when they can't even raise "human rights" on Google China.
We agree on China's human rights record. However what I sought to show was that the NZ clause is not alone and a major market has reviewed its complaints procedure and significantly restricted rights holders ability to make a claim outside the Court system.
Jac said:
Hold on to your braces, but I am inclined to agree with you on that point. Looking at it logically, there does seem to be an inequity in allowing people to come along at any time at all after an event and still claim rights they may not have previously had (or may not have previously realised they had to protect). Either way, it seems sensible to suggest that the onus is as much on the trademark holder to seek out infringements as it is on the domain name registrant to ensure they do not register a blatantly obvious infringement. So maybe there should indeed be a 'statute of limitations' on domain name disputes.
A couple of other things that occured to me when taking a closer look at the Kiwi set-up. It seems to me that there is a distinction drawn between the registrars - who are commercial and compete with one another - and the entity that holds the registry - which in turn is seperate from the "political" body that represents .nz.
Also membership for an individual seems to cost about NZ$56 a year - which when I was last in NZ would amount to less than £20 a year.
