Nominet consults on dispute resolution service reform
Nominet has issued a consultation paper seeking the views of stakeholder groups on the proposed reform of its dispute resolution service (DRS). The proposals have already been considered by Nominet's body of DRS experts. The paper examines four main areas: appeals, tribute/criticism sites, web designer cases and the 'without prejudice' rule. The consultation period ends on July 19.
The current appeal process has been criticized with regard to the standard of appeals, further submissions and fees. Nominet proposes that:
- standard appeals should consist of a full review;
- the notice of appeal should be shortened;
- the appeal fee should remain unchanged; and
- decisions should continue to have persuasive precedent value.
The paper also proposes establishing a formal appeal timetable as follows:
- 10 days to request an appeal;
- 18 days to lodge a full notice of appeal;
- 10 days to file a response; and
- 30 days to deliver a decision.
Regarding tribute/criticism sites, the paper proposes (i) maintaining the current DRS policy that such sites fall under the principle of fair use, but (ii) removing the provision that shifts the burden of proof to the respondent to prove that a domain name is not abusive in cases where it is identical to the name of the person criticized or paid tribute to in the site. The current policy distinguishes between these identical domain names and those which make the criticism or appreciation implicit in the name itself, for which the burden of proof remains with the complainant.
In some cases, a complainant will allege that a website designer has registered a domain name in his/her own name, rather than in the complainant's name as requested. The expert panel recommends that such registrations should be recognized by the DRS policy as abusive, as the complainant has (i) used the domain name exclusively, and (ii) paid for its registration or renewal. The consultation paper adds to this by proposing that the respondent be required to show an agreement to register the domain name in his/her name in such cases.
The current DRS policy does not specify whether the 'without prejudice' rule applies to offers made for the sale of domain names in the same way as it does to correspondence intended to achieve a settlement during litigation. The expert panel found that the rule should not be added to the policy, as an offer to sell a domain name for an amount greater than the purchase price can indicate an abusive registration. Therefore, the paper proposes amending the DRS policy to declare that the experts will be entitled to view all correspondence, regardless of whether it is stated to be without prejudice.
The consultation is the latest in a series of moves by Nominet to streamline its procedures (see Positive renewal procedure will help tidy up '.uk' domain).
Alice Hardy, Lovells, London
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