Nominet has released a radical idea for a change to the .uk DRS by which respondents who fail to respond to a DRS dispute could lose their name and have it suspended automatically. Intended to deal with unresponsive cybersquatters, it could also represent a risk of sabotage for large commercial companies.
A brief introduction to Nominet and its .uk Dispute Resolution Service (DRS)
Nominet is the domain name registry which holds the central database of all 6 million publicly available domain names ending .uk. If you have a .co.uk, .org.uk or .me.uk domain name, you have a direct contract with them which includes the Dispute Resolution Service (DRS), Nominet’s system for dealing with trade mark disputes and other complaints.
The Dispute Resolution Service has, since its re-launch in 2001, been similar to the UDRP system used in .com but with various modifications (to fix the UDRP’s perceived shortcomings or oddities) and a number of extra features such as mediation and joint complaints designed to improve on it. It has been successful, won awards and been copied in other countries.
Currently a complainant files (for free) a 2,000 word complaint online, which has to claim rights in a name or mark similar to the name and also has to claim that the name in the hands of the registrant is “abusive” – which is defined in the rules of the DRS (the “policy” and “procedure”). The registrant can respond: if they do then Nominet provides two weeks of free telephone mediation. If the mediation fails or if there was no response the complainant can pay £750 + VAT for an independent expert (allocated by rotation from a Nominet selected list) to decide the dispute.
There are two other types of submission – the Reply (a 2,000 word chance for the Complainant to respond to new things brought up in the Response) and Non-Standard Submissions (NSS). An NSS can be made by either side at any time – any NSS must have a leading paragraph justifying its existence and then the body of the text. Only the leading paragraph is shown to the expert automatically; he/she can choose whether to see the rest.
DRS Experts order transfers about 70% of the time, and almost 95% of the time in “no-response” cases, although they occasionally reject a case as unproven. There is an opportunity to appeal, with a time-limit for doing so, although this is rarely used. Decisions are reviewed after publication by the Experts Review Group.
For full details see <www.nominet.org.uk/go/drs>
So why is there going to be a change? What stage is it at?
The DRS was updated in 2004, and Nominet announced an intention to review it regularly. A public consultation started in 2006 and ended in February 2007. It generated a record 128 responses, including a co-ordinated response from the domain traders/secondary market.
In July Nominet published its proposals in a paper to its Policy Advisory Board (PAB). The PAB’s response appears to have been mixed, but changes go to Nominet’s board at the start of August. Nominet has promised to publish details of the next steps in August.
The paper suggests a major change and several minor ones.
The major change
Where there is no response from the registrant, the complainant will be able to obtain an automatic transfer of the domain name(s), akin to a default judgment (fee £200 + VAT). The domains will be suspended (non-operational) for a month so as to alert the transferor. The transferor could have the transfer reversed for £100 + VAT, and file a response. This will change the dynamics of the DRS, because it makes domain name transfers in “no-response” disputes automatic, faster and cheaper than before.
Nominet’ statistics show that about 40% of disputes do not currently get a response, which equates to about 400 disputes a year. Only some of those go to decision, although those that do are 70% of the expert’s workload. Under the new system, more cases are likely to get a response, but the main effect will be a large increase in the number of lower cost, faster, uncontested, probably confidential transfers.
For rights holders this appears at first inspection to be good news – the domains registered to those cybersquatters who have no defence and hence never respond can be dealt with much faster. Since some in this market rely on the profits made from every day of mis-use, the faster the process the better, and Nominet should be congratulated for keeping the DRS up to date with the evolving domain market.
The flip-side, as with all deregulation and reduced prices, is a risk of abuse. Nominet’s experts have only ever found ‘reverse domain name hijacking’ (effectively ‘abuse of process’ in the DRS) on a couple of occasions, for two reasons. Firstly because it is the complainant who has had control over whether a dispute went to an expert (and this will change, see below), and secondly because the DRS could not lead to a transfer without payment of the fee and consideration by an expert. While the experts usually award a transfer in a no-response case, they do not always do so.
This leads to a number of possible routes of misuse, depending on drafting.
1. A risk that a company will lose a domain via default transfer because they did not respond in time. This risk is higher now that there will be fewer communications with the registrant before suspension and transfer.
2. A complainant files multiple disputes in the hope that the registrant fails to respond to one of them and thereby either suffers disruption through filing multiple responses or loses the name (by error, exhaustion or otherwise). Missing just one dispute could lead to transfer: a greater risk than currently. The complainant may be vexatious (eg ex-staff, competitor) or fishing for information. As a partial counter the new power of registrants to force a decision may catch such users out, but findings of reverse domain name hijacking can, at most, result in that complainant being barred from the DRS. Unlike the courts, there are no fines for contempt or abuse of process.
3. If the listed registrant is an ex-employee or contractor but the user is a company, the proposal as drafted gives no way to get a transfer without the name being turned off for a month, which would be bad for the user. There are possible drafting solutions, but it creates more complexity in the DRS, or there is the option of giving Nominet discretion (which the DRS generally seeks to remove).
4. There will be no check on quality in a default transfer, so even a very poor complaint would qualify (attempts to judge quality would be subjective and impossible for Nominet). DRS complainants must at present prove their case, and some poor cases are weeded out because the complainant realises they cannot ensure a win. Respondents could decide that poor complaints did not justify their time and money to respond to – which this would prevent.
What else is suggested and why?
There are a number of minor changes:
Financial
- There will be a fee of £10 to start a DRS case, to discourage those complainants who think a DRS complaint is similar to complaining to a regulator. This, with the other new fees, will fund the Expert Review Group.
- Respondents will be able to pay for decisions, to obtain decisions of non-abuse and highlight poor complaints and reverse domain name hijacking.
Operational, Quality and Accessibility
- The online complaint and publication systems (which date from 2001) will be upgraded – Nominet is in any event updating its systems for online users.
- The Expert Review Group will change – they will no longer be sitting experts and will review cases before publication (and will be able to suggest changes). This seeks to avoid any need to amend a decision after publication, and to improve the quality of decisions.
- The DRS Policy and Procedure will get some level of “Plain English” treatment.
- Complaints and Responses can be 5,000 words.
Rights and Abuse
- As expected, the DRS will fall more into line with
UK Orange
- Some activities (such as registering a large number of domains) will be listed as not being evidence of abuse by themselves. This is to reflect a view that registering domains for the secondary market is not abusive per se.
A couple of the ‘no-action’ points do bear comment:
- The Reply stage remains. The suggestion that it be deleted as defunct following the introduction of the Non-Standard Submission (NSS) process led to mixed responses.
- NSS will be retained but ‘clarified’ – although the particular ‘clarification’ highlighted in the position paper has no obvious benefits.
Summary
This consultation has led to some radical and inventive changes to the DRS. The big test will be how often this new freedom is misused: the risks listed are theoretical, and until the new system is tried we do not know their scale.
The changes present an opportunity and a risk to business. If these new provisions are not misused, they could be extremely good for business generally, as they would put pressure on those who misuse domains or try to sell them for just under the DRS fee price. If it is misused, it could be a thorn in everyone’s side, including Nominet’s.
Edward Phillips is Legal Counsel at the Central Government Business Unit of Fujitsu.
