DRS advice please

[Systreg]

Hi,

Someone has started a DRS for a domain I caught early this year, and there's one bit in the complaint that I'd like some clarification on, as it's to do with business.

The complainant said he bought a company and the related domain (the one being DRS'd) in 2010, and that he employs a web company to look after the domain, and that they host that domain and other sites for him.

Last week, he said that he emailed the web company looking after his domain to check that it was safe, and they replied to him with this:

That's the business bit I don't get about the previous director, that's assuming the director mentioned was the director he bought the company and domain off 5 years ago, but why would a previous director who sold his business/domain have anything to do with the domain 5 years later in 2015?

The complainant must have been renewing it for the years since he bought it, because it was due to expire in 2012 but was renewed, and I believe it was due to expire again in 2014, but was again renewed until expiring in 2015, so someone to do with the complainant had control of the domain at least until when they renewed it last year, so I'm not getting how he or the web company suddenly didn't have control of it when it expired.

As far as I'm concerned, one of 2 things should have happened, firstly, he bought the the domain, it should be registered to him or the company he bought it with, and his registered email address with Nominet would be the one getting the renewal warning emails from Nominet and his registrar.

Secondly, if he gave the web company looking after his domain permission to change the admin email to their email address, they should have been getting the renewal warnings, so I'm not seeing where this other stuff about the other director is coming in to the picture, or how they didn't get renewal warnings.

I looked for any historical Who-Is for the domain, but could only find one listing from 5 years ago, which has the original registrants name on it before the complainant bought it off him. I can't find anything more recent with an updated Who-Is listing the last registrant who let it expire. Can Nominet supply me with details of the last registrants details at the time it dropped?

These are the relevant details on the historical 2010 Who-Is:

Relevant dates:
Registered on: 04-Jan-2000
Renewal date: 04-Jan-2012
Last updated: 19-Mar-2010
Registrar: Fasthosts Internet Ltd [Tag = LIVEDOMAINS] URL: http://www.fasthosts.co.uk
WHOIS lookup made at 20:15:57 10-May-2010

That clearly shows that it needed renewing in 2012, which is 2 years after he bought the domain, so he must have had control of it at that point, and again when it was renewed in 2014.

If anyone wants to see the full text of the complaint with domain details omitted, feel free to send me a PM and let me know your thoughts.

Cheers.

[edit]

On reading the complaint again, he says he bought it in Jan 2010, yet the historical Who-Is shows the original registrants name still on the domain in May 2010, no idea why someone would spend mid £x,xxx on a business and a domain name and leave it in the sellers name for 4 months after it was bought.

 

[redbird]

My personal view is that none of that has any relevance to a DRS, it is merely an explanation of WHY it dropped. If that is the basis of their DRS then can't see it getting very far, many domains drop unintentionally, that's the nature of the game.

Others more experienced may add more, but that is my view for what it is worth

Dave

 

[martin-s]

If it was me, I'd err on the nice side and let him have it back at a token amount to cover my time.

 

[Systreg]

@ RedBird, that's my thinking as well, and that of another domainer I've been in contact with about this since getting an email from the previous owner last week.

I told him I'm the innocent party in this, and that he should be taking action against the web company he employs, and to quote him in his complaint, he said that they had messed things up on every level.

 

[redbird]

Taking into account that the domain will have been suspended for 2 months with no website and no email, how important to a business can it be?

 

[Systreg]

@ Martin, I tried to be nice and offered my advice about what he should do, but his emails have been dismissive and unfriendly.

 

[AssetDomains]

My personal view is that none of that has any relevance to a DRS, it is merely an explanation of WHY it dropped. If that is the basis of their DRS then can't see it getting very far, many domains drop unintentionally, that's the nature of the game.

Others more experienced may add more, but that is my view for what it is worth

Dave

I agree with this was hit with a DRS in similar circumstances when it got to mediation I believe they were basically told they would lose out if they took it to the expert as the tone of their communications completely changed at this point. I believe there registrar who dropped the ball footed the bill to require the domain in the end

 

[Systreg]

@ RedBird, he said he shelved his project after spending too much on it, so there hasn't actually been any recent site on the domain, I think 2012 was the last time something was on it according to archive.org.

He did have a TM for the same term as the domain but he withdrew that at some point, there was one other TM not owned by him, that one was cancelled.

I've edited my first post to add a bit to the bottom of the post.

 

[redbird]

@ RedBird, he said he shelved his project after spending too much on it, so there hasn't actually been any recent site on the domain, I think 2012 was the last time something was on it according to archive.org.

He did have a TM for the same term as the domain but he withdrew that at some point, there was one other TM not owned by him, that one was cancelled.

I've edited my first post to add a bit to the bottom of the post.

I'm sure many of us have let domains go that we later regret, doesn't mean we can change our minds. I Can't see he has any chance of winning a DRS. You can refuse mediation (I did once and it wasn't pursued) which forces the complainant to pay the fee to continue, that should make him to reconsider his chances.

 

[keys]

DRS is Policy is quite clear.

Firstly - The Claimant a must show that it has rights to the domain name.

Secondly - The Claimant must show that registration or use of the domain name, by the Respondent, has been unfairly detrimental to those rights.

Why the previous Registrant or his agent failed to renew the domain is irrelevant, unless it has a direct bearing on either of the above points.

I am currently dealing with a DRS Complaint from a large UK retailer, who hired a specialist law to act for them. The Complaint was formidable, but upon sight of the response they agreed upon a sizeable payment within mediation, rather than risk arbitration.

I would be interested to read your Complaint. From what you say there may be settlement agreeable to both parties if your response is carefully considered.

 

[gimpydog]

I have to agree with redbird & keys.

Don't get hung up on the details of WHY it dropped.

Depending on your plans for the domain, DRS mediation might be the best sale opportunity you will ever get. Don't miss out on it just because the bloke has pissed you off, or bruised your ego. :wink:

 

[BG]

It's a closed case in my opinion and all the points they have raised are irrelevant!

They had more than enough time to renew the domain name, and regardless of who was in control of it they could have simply contacted Nominet themselves to process the renewal request.

It's not your fault for someone else's incompetency to renew a domain name... you merely purchased a name which was available to buy. It's not for you to know the internal mechanics of how the previous company was operating, that's an argument they can have with themselves!

As long as that domain name is generic and not trademark, plus you're not seen to be passing off then i can't see you losing the name in a hurry.

It's pretty black and white imo...

I own the company "Breaks Ltd" and the domain "Breaks.com" - If i forget to renew the domain and it gets snapped up by someone else on the drop, then why do i deserver rights over someone else? I don't... and trying to prove those rights would be extremely hard! (the same will apply for your DRS)

Best,
Barry

 

[Systreg]

I understand your points, but the WHY it dropped is of interest to me.

I've sent an email to Nominet asking if it's possible that they can supply me with Who-Is data for a couple of points, because the Who-Is I posted shows it was still in the original registrants name 4 months after he's sold it to the complainant, which I find strange, because who spends close to mid £xx,xxx on a business, domain and development and doesn't bother to get the domain transferred to themselves.

I'd like to know if/when it was transferred from the original registrant to the complainant, or who it was registered to at the point at which it dropped, the original registrant, the complainant or the web company he employed to look after it.

 

[bluerock]

Your wasting your time going over the reason why it dropped, its completely irrelevant. Someone screwed up and its not your fault.

They have to prove rights which they can do quite easily but they also have to prove abusive registration which they can't. Ive had similar and I really would not worry about it. I also would stop exchanging emails with them. Anything you write can be used against you in the drs.

Keep your response brief and to the point and see what happens during the mediation period. Bottom line is he has to stump up £750 + vat to take it further.

 

[BG]

I'd like to know if/when it was transferred from the original registrant to the complainant, or who it was registered to at the point at which it dropped, the original registrant, the complainant or the web company he employed to look after it.

It's not your job to find out why it dropped or who owned it previously etc, thats for them to worry about as they are the ones trying to lay claim to YOUR name and prove rights!

Think of this drs case as a totally new domain of which you know no previous history, treat it as if someone is attacking your rights to something which you own (which they are). How would you deal with such a situation?

It could be as simple as... I was searching for a domain name to fit a project I was working on, and the "said" domain name was available to register - I have no prior knowledge of the "XYZ Company" and in my opinion have done nothing wrong when registering this name.

Don't go into detail at this point, keep it simple!

 

[namealot]

The matter of how its renewed, what previous company did and didn’t do are all immaterial (with exception of fraud or theft which would be criminal matter? ) Once a name drops and is reregistered its past is irrelevant even if it’s a trademark it would still depend on its uniqueness how generic etc e.g. “orange” hard to claim solely on trademark “unclebobsredsmumpfcookiecutter” relatively easy solely on trademark?

I’d only acknowledge that I registered the name at present you have right to name by virtue of registration? If they want to take it away they have to prove a right to the name you need do nothing. Some have legitimate uses or create elaborate excuses as to why they registered it but with first come scenario the onus is on them to prove it not you ? Less you say less they can try and twist and turn it....

 

[redbird]

I agree with all of above, reason it dropped it irrelevant to you and DRS proceedings. Now they have started DRS proceedings I would not have any more contact with them other than via the DRS procedure to safeguard saying anything that could be used against you.

If you are happy to sell it to them, then mediation may be the way to go. If you don't want to sell then personally I'd refuse mediation and make them pay the fee to continue.

 

[Systreg]

Thanks, I'll keep all those points in mind about keeping my response short and simple.

I still wanted clarification on who was actually in control of the domain at expiry, and Nominet have now supplied that. Part of what I asked about was regarding this bit that the complainants employed web hosting company replied to him with:

Looking at your domain name this expired a while ago, when the company split from the previous director the accounts were split so we didn't have control of this.

I said to Nominet:

It appears that (complaints web hosting company) are saying a previous director had control of the domain, I'm not sure how though, because the previous director would have been, xxxx xxxxxx, who the complainant bought the domain off in Jan 2010, and it's now 2015.

The only thing I can think of is, was the domain still registered to xxxx xxxxxx when it expired?

Someone was listed as the registrant and clearly in control of the domain, getting renewal warnings and renewing the domain up until it expired, but who, was it the seller of the domain, xxxx xxxxxx, the complainant, or the web hosting company?

It turns out it was still registered to xxxx xxxxxx for the last 5 years, Nominet said:

Thank you for your email and setting out what you know about the previous registration.

I’m able to confirm that the xxxxxxxxxxx.co.uk domain name was still registered to xxxx xxxxxx, but with a (complainants web hosting company) email address at the time the domain name expired on 04/01/2015.

So it appears that for whatever reason, it was still registered to the first owner of the domain, so I'm thinking the complainant must have kept him on as director, and something happened when accounts were split, either way, it's the complainants fault for not taking care of his business interests in a proper manner, and his web hosts fault for not informing him of anything relating to the domain name as they were in control of it at the expiry date, both of which I can use in my response to show that he hasn't taken any reasonable steps to make sure his domain was in safe keeping.

 

[Edwin]

By answering their specific allegations, I think you're actually making it easier for them to win.

If the domain's generic, it should be sufficient to outline all the MANY warnings the owner of the domain name received (doesn't matter who owned it - the warning process is the same for everyone) and therefore demonstrate that they had no right to it after it expired, and explain that it's a generic domain - the history of the domain name doesn't come into it.

But the more you ask questions - especially if that leaves a "paper trail" - the more it indicates that you believe their complaint has at least some merit...

 

[martin-s]

It's not always about who wins, sometimes it's about what the right thing to do is.