Email asking for eu domain bought on 7th April

[Jac]

...Maybe as a Nominet PAB Member you could ask Ed for copies. ...it would seem a natural choice for a "concerned" PAB Member, such as yourself.

As far as I know, Edward Phillips is away today. He is (I believe) back tomorrow. So if he's looking in on this, perhaps he'll answer you directly. I can't answer for Ed, or Nominet, on legal matters. I can only answer as you say; as a concerned PAB Member.

...Deleting 'expert' findings 'after the fact' - I guess from your 'objective reasoning' that's OK, is it???

Humble opinion coming up again (and I've already said this in my reply to you weeks ago) but the thing you keep referring back to would not, IMHO, have made any difference to the result in your case. I said it before and I'll say it again, you registered sundeckvip.co.uk long after the other side registered sundeckvip.com. Had it been the other way round, I'd have agreed you had a point; but it wasn't. And if you were being totally fair here sneezy, you would acknowledge that you agreed with a lot of what I said last time. So with the best will in the world, and with respect to your personally held grievance; you can't unfry an egg.

...'Probably' most of us on this forum worry about the DRS and 'if' or 'when' it's going to 'hit', so it's important that the DRS is seen to (and more importantly is) above reproach!!!

One disagreeable DRS decision does not make a bad "Dispute Resolution Service" just as one disagreeable court decision does not make a bad court system. In an ideal world, I'd wave a magic wand and everybody would have everything they want and the winning lottery numbers too, but sometimes s**t happens. Most people shrug their shoulders, dust themselves off, and get on with life. I thought you had decided to do the same; so whadda ya want from me; blood?! On second thoughts... don't answer that! :twisted:

The DRS process is currently under review and there will shortly be a public consultation. You are obviously concerned and feel the system let you down, so instead of dwelling on the past, do something constructive and respond to the consultation when it comes online. I don't mean to be contrary, but I keep saying; that if people want to change things or have their opinions included, please start by stating said opinion in black and white. The more responses Nominet receives the more they will have to take notice of what 'the people' want from the DRS. (I'll even let you know when it is underway.)

Regards
James Conaghan
[PAB Member]

 

[sneezycheese]

As far as I know, Edward Phillips is away today. He is (I believe) back tomorrow. So if he's looking in on this, perhaps he'll answer you directly. I can't answer for Ed, or Nominet, on legal matters. I can only answer as you say; as a concerned PAB Member.

...In what way is it a "legal matter"? All I was saying that as a PAB member you would want to check that there has been no 'foul play'. You don't have to show me or anyone else on this Forum, but SURELY from a PAB perspective you want to see that everything is above board???

Humble opinion coming up again (and I've already said this in my reply to you weeks ago) but the thing you keep referring back to would not, IMHO, have made any difference to the result in your case. I said it before and I'll say it again, you registered sundeckvip.co.uk long after the other side registered sundeckvip.com. Had it been the other way round, I'd have agreed you had a point; but it wasn't. And if you were being totally fair here sneezy, you would acknowledge that you agreed with a lot of what I said last time. So with the best will in the world, and with respect to your personally held grievance; you can't unfry an egg.

...Just answer the question Jac, it's soo easy YES or NO, is the deletion of 'reasoned findings' 'after the fact' OK??? - Yes or No, come on Jac you can do it. Also, if they (as you say) "would not have made 'any' difference", why were they 'deleted'???

One disagreeable DRS decision does not make a bad "Dispute Resolution Service"

...There's been ONLY one "disagreeable DRS decision" - OK I'll take 'your word' for it.

The more responses Nominet receives the more they will have to take notice of what 'the people' want from the DRS. (I'll even let you know when it is underway.)

...Thanks.

 

[olebean]

One disagreeable DRS decision does not make a bad "Dispute Resolution Service" just as one disagreeable court decision
Regards
James Conaghan
[PAB Member]

Something I just do not get;

yes there is sundeckvip.com and sundeckvip.co.uk and numerous other examples including bounce.co.uk

At no point have I seen an expert (if I am wrong please point me to the DRS case) suggest that co-existance of TM domains is feasible.... whether that is a domain holder holding a domain in a none infringment capacity...

So guys is there a case that suggests they can exist together?

 

[Jac]

Sneezy

I don't nesacarily worry about the DRS, I am more concerned with the areas of business, such as the internet industry I.e " key stakeholder groups : Government, business, academia and intelectual property" who have representatives on the PAB and PAB members who represent the local Internet community......

So Jac

Who do you represent......???

What do you consider the wider stakeholder community??

My dear olebean...

Will you please stop asking me the same questions over and over ad nauseam. I have already answered this one I don't know how many times. However, never let it be said I don't try to oblige, so I have dug out a couple of my responses to you (yourself) from previous posts so you can't argue I haven't answered already. Will you try and remember what I said this time? I have emboldened the relevant bits for those who will not see.

With so many diverse viewpoints, it is never an easy task getting consensus, but I personally believe in consensus as a democratic principle. That sometimes means foregoing my own values and bowing to the majority view; that's democracy.

I also wrote this which is probably more to the point.

I only represent my own opinion, though in general, it is reasonably well informed because I listen to other people and their viewpoints. I don't always agree with them but I listen anyway. I am sure AcornDomainers like Whois-Search will vouch for my impartiality even when I dislike a particular viewpoint. Further to that, I do not work for Nominet, nor am I paid by them, my allegiance is to the internet community.

Is that clear now? My allegiance is to the internet community; and further to that, I believe the PAB should represent the wider stakeholder communities not just one or other stakeholder group.

<thinks> sometimes it just isn't easy </thinks>

Regards
James Conaghan
[PAB Member]

 

[olebean]

Jac

OleBoy

That seems a contrast in statements: So let me remind you of the election pledge...

I believe the membership deserves forceful representation. Even if I disagree with your viewpoint, I will put it forward anyway if you ask me to

And you quotation just now

Ionly represent my own opinion

So James..... My question still remains.... Which side are you on?? Jacs side???

 

[Jac]

...In what way is it a "legal matter"?

Because you won't let it rest and you have intimated (more than once) that you are seeking legal advice. I think Beasty will concur that if a matter is or is likely to be 'sub judice', that it is in your best interests not to keep expounding on it on a public list. Just looking out for you sneezy!

All I was saying that as a PAB member you would want to check that there has been no 'foul play'.

I did check; you know that already; but you just don't like my answer.

You don't have to show me or anyone else on this Forum, but SURELY from a PAB perspective you want to see that everything is above board???

That would be a reasonable assumption (see comments above).

...Just answer the question Jac, it's soo easy YES or NO, is the deletion of 'reasoned findings' 'after the fact' OK??? - Yes or No, come on Jac you can do it. Also, if they (as you say) "would not have made 'any' difference", why were they 'deleted'???

Two things. One, you are now being a tad devious because you know there is more to the whole issue than you are saying on this very public list. Two, it was not Nominet who deleted what you are referring to and you know it; so please stop blaming the wrong entity. The criterion, to me anyway, is in the detail (just like the devil) and whether what you refer to was deleted or not, you would still have lost this particular DRS case. So come on yourself sneezy pack it in or get the legal advice you keep threatening and take it further. Either way, I do not think it would be in your best interests for me to comment on stuff you keep leaving out and you could easily end up spending an awful lotta dosh just to get the same result.

...There's been ONLY one "disagreeable DRS decision" - OK I'll take 'your word' for it.

Any adversarial mechanism will bring disagreeable and unpalatable decisions for someone, you can't have two winners, and someone's gonna be sore! But it doesn't make the system bad because some people think they've been victimised; otherwise you'd never have any decisions being made in any dispute mechanism at all.

I'm going home for the night so you can all play among yourselves now!

Regards
James Conaghan
[PAB Member]

 

[sneezycheese]

Has he gone yet?

I'm going home for the night so you can all play among yourselves now!

...Phew.

Sorry Jac I’m only kidding.

Battle to recommence tomorrow…?

 

[rob]

Battle to recommence tomorrow…?

Please no.... what have we done to deserve this !!!!

 

[sneezycheese]

Please no.... what have we done to deserve this !!!!

...thanks rob I can't stop laughing

It is a bit like pulling teeth though isn't it?

 

[Beasty]

Well; if yer gonna get all legally pedantic on me then yes, "professional advice" is different from advice or comment given freely on fora; but I didn't mean to imply you were offering your professional advice, only that it is always prudent to offer advice that encompasses the differences in the DRS system and civil courts. Otherwise (bless their cotton pickin' socks) people may well assume you are indeed offering "advice". I know I did; and you know what happens when you ass/u/me don't cha? You make an ass out of u and me.

James - all I was saying was that it may be of interest. I was not offering any sort of advice - professional or otherwise. So (for once!) I was not trying to be legally pedantic.

As a personal opinion, I think what swayed the court judgement in favour of the existing registrant was the fact he had used the domain name for his own trade since August 1999 and from March 2000 as a website. From what I can tell, he also registered phone4U.com as far back as December 1998. Those are fairly convincing facts; and please note my use of the word "facts".

If you have read the entire judgment, you'll have seen what swayed the Judge's view. Tellingly it required the type of detailed analysis that only a full trial can allow - but that a necessarily superficial DRS analysis could not.

One particular piece of evidence from a third party witness was crucial - along with his credibility in the box. That is something that would be very difficult to prepare from scratch in 15 working days as the DRS requires - and the personal impression would be impossible to recreate in a paper-only system. It should be said that it also remains to be seen what the Court of Appeal makes of it all.

The more pertinent question may be - would a DRS expert turn such a case away saying "It's too detailed - go to Court to sort it out!". I can only recall one such finding off the top of my head. I suggest that this type of case highlights there should probably be many more.

I think you would agree that "rights" in any civil court case are actually determined by the court? Similarly, I would have to contend m'lud that the "rights" in any DRS dispute have to be determined by the Expert presiding over said dispute. The comment Ed Phillips made last year to the Register, highlighted the differences in modus operandi between both systems. For the sake of clarity I will repeat the relevant bit.

"In a civil law case the cause of action will be 'passing off' or registered trade mark infringement: in the DRS the Expert is considering the narrower question of (a) does the Complainant have rights and (b) is the registration or use of the name 'abusive'. This distinction has always been there, and arises because the DRS simply solves a dispute under the contract of registration, not a larger problem, as the courts seek to."

So when you say "if those rights have been considered in the High Court or beyond - then the analysis done there should bind (or at least guide strongly) the Experts", I would have to contend that each case; whether in court or DRS; should be determined on its own merits. That is, in essence, what civil court cases do; make decisions based on the available evidence. So does the DRS. I would also contend (in my humble opinion) that neither are perfect, which is why both allow for appeal.

I agree - the DRS was established as an easy and quick forum for rights holders to bring complaints. However there is considerable overlap in nomenclature and with concepts of UK trademark law - as the Seiko Appeal discusses. Both systems may have imperfections - but I know which one I think is the "less imperfect" for dealing with any seriously contested case.

Anyway, how did we end up here? Whatever else this thread started about, it couldn't be a DRS case! :mrgreen:

 

[Jac]

Jac

OleBoy

That seems a contrast in statements: So let me remind you of the election pledge...

Olebean

If you insist on being so selective with what you quote, then I am not surprised you are confused. And you don't have to remind me of my PAB election pledge, I wrote the blessed thing. The membership happens to be the closest stakeholder group to Nominet; they pay their dues and don't bitch and complain about how much either; they also deserve to be represented because they elected me; but (on nom-steer for instance) I have always been upfront about who I represent as a PAB member; and once more for the ole boys, it is the wider stakeholder communities.

If you want me to expound even further on that, I even included "domainers" in my definition of the wider stakeholder communities on nom-steer just this morning. And because I'm a tell it like it is kinda guy, I included them, even though I don't necessarily agree with their business model. If you can find fairer representation than that ole boy, feel free to put them up for the PAB election next year. All you need is one Member to propose you and another to second you; you don't even have to be a member yourself. Good eh?

So James..... My question still remains.... Which side are you on?? Jacs side???

I'm even on your side ole bean, and if you had one iota of common-sense as opposed to two iotas of non-sense, you'd stop trying to score points off someone who is actually trying to make things better for the whole community, even you.

Regards
James Conaghan
[PAB Member]

 

[Jac]

Please no.... what have we done to deserve this !!!!

I've run out of sick leave, so I'm calling in dead.

Regards
James Conaghan
[PAB Member]

 

[Jac]

Something I just do not get;

yes there is sundeckvip.com and sundeckvip.co.uk and numerous other examples including bounce.co.uk

At no point have I seen an expert (if I am wrong please point me to the DRS case) suggest that co-existance of TM domains is feasible.... whether that is a domain holder holding a domain in a none infringment capacity...

So guys is there a case that suggests they can exist together?

Here in the UK, trademark law allows for 2 companies to own the same trademark if they are used in relation to different products or services. As far as I understand it, trademark protection is only applicable within a defined territory, so 2 companies in different countries could effectively use the same trademark. However, domain names cannot operate in the same way because of the global nature of the World Wide Web . IE: 2 companies cannot operate with the same domain name.

IMHO a registered trade mark should be protected on the World Wide Web just as it is in the real world. Hence, the use of someone else’s trademark (as a domain name) will most likely be seen as an infringement of their rights in both the UDRP and the DRS.

In the now infamous "One in a Million" case (1997), the key to the decision seems to lie in Lord Justice Alduos' conclusion that the very act of registering a domain name that can in some way be associated with a company or brand name, "amounts to false representation which constitutes passing-off". His judgement further stated that either registering a company name without setting up a website, attempting to sell the name, or demanding money from a trademark holder, breaks the company's trademark.

I don't know if that judgement (or appeal) has ever been challenged but I don't think it has. (I am happy to be corrected.)

So the quick answer would seem to be "No, the co-existance of TM domains is not feasible and they cannot exist together".

Regards
James Conaghan
[PAB Member]

 

[Jac]

...thanks rob I can't stop laughing

It is a bit like pulling teeth though isn't it?

A woman and her husband interrupted their holiday to go to the dentist. "I want a tooth pulled but I don't want no anaesthetic cos I'm in a hurry," she said. "Just extract the little beggar quick as you like and we'll be on our way." The dentist was suitably impressed. "You're certainly a brave woman," he said; "so which tooth is it?" The woman turned to her husband and said, "Show him your tooth, dear."

If it's teeth you want pulling, come to my office. I do it without anaesthetic! :-D

Regards
James Conaghan
[PAB Member]

 

[Jac]

James - all I was saying was that it may be of interest. I was not offering any sort of advice - professional or otherwise. So (for once!) I was not trying to be legally pedantic.

In the words of the inimitable sneezycheese; I was only kidding.

I agree - the DRS was established as an easy and quick forum for rights holders to bring complaints. However there is considerable overlap in nomenclature and with concepts of UK trademark law - as the Seiko Appeal discusses. Both systems may have imperfections - but I know which one I think is the "less imperfect" for dealing with any seriously contested case.

I agree with what you say about the "less imperfect" option, but as I said long time ago, the parties to a dispute can bypass the DRS and go straight to court at any time, if one of them so chooses. My concern has been what it has always been, that the proper respect be given to the DRS if both parties decide to use it as an option to settle disputes. My initial foray into Acorn Domains found you and me skirmishing on what should and shouldn't be the case in a system that has already been defined and written into the Terms and Conditions of Registration (albeit not to yours and other's satisfaction).

Anyway, how did we end up here? Whatever else this thread started about, it couldn't be a DRS case! :mrgreen:

Just me being pedantic I guess.

But seriously folks ... it was your reference to a .co.uk domain whilst replying to a possible .eu dispute. I felt we needed to clarify that the .uk DRS is not the same kind of animal as the .eu ADR, and whilst I understand you referred to a civil court case, I just wanted to clarify that .eu disputes would not be handled in the same way as .uk disputes might.

This is the comment that started it all:

You may want to google "phone4u.co.uk" to find some info about a High Court action from last year between Phones4U and a guy who registered phone4u.co.uk.

Regards
James Conaghan
[PAB Member]

 

[Beasty]

In the words of the inimitable sneezycheese; I was only kidding.

Ditto!

I agree with what you say about the "less imperfect" option, but as I said long time ago, the parties to a dispute can bypass the DRS and go straight to court at any time, if one of them so chooses. My concern has been what it has always been, that the proper respect be given to the DRS if both parties decide to use it as an option to settle disputes. My initial foray into Acorn Domains found you and me skirmishing on what should and shouldn't be the case in a system that has already been defined and written into the Terms and Conditions of Registration (albeit not to yours and other's satisfaction).

In truth that forum choice vests almost exclusively with the Complainant.

But seriously folks ... it was your reference to a .co.uk domain whilst replying to a possible .eu dispute. I felt we needed to clarify that the .uk DRS is not the same kind of animal as the .eu ADR, and whilst I understand you referred to a civil court case, I just wanted to clarify that .eu disputes would not be handled in the same way as .uk disputes might.

This is the comment that started it all:

I refered to a High Court case dealing with the same 4u extension. I didn't mention the DRS - and from the initial post it seems equally open for the complainant to consider either EURid or High Court - so I thought it may be of interest. The co.uk and .eu extensions would be unlikely to have any material effect, if it were to go to Court.

 

[Jac]

Ditto!

Stop calling me Ditto!

In truth that forum choice vests almost exclusively with the Complainant.

I see what you mean but surely (in reality) the respondent has choices too?

Regards
James Conaghan
[PAB Member]

 

[Beasty]

According to the Court List - the Appeal judgment in phone4u.co.uk is due to be handed down tomorrow morning. It was pulled from the list a couple of months ago - but this time I think we may be about to see what the Court of Appeal think about this case and - depending on which points were argued at the appeal - perhaps some wider domain name legal issues.

 

[Beasty]

I see what you mean but surely (in reality) the respondent has choices too?

Not really. Apart from s21 of the TMA - available only if the Complainant has been careless in any early letters - and alternatively some sort of "nuclear" attack on the fairness etc. of the Nominet contract - I can't see how a Respondent can choose the Courts over the DRS if that is where the Complainant has chosen to fight first.

In fact the itunes.co.uk case seemed to make it clear that - once started - the Courts wanted to see all stages of the DRS finished (including the Appeal stage) before they would consider a Judicial Review.

In practical terms all the choice regarding forums lies with the Complainant. I don't think that is very fair; and it is even less fair when they can "forum jump" if they don't get the result that they want in the first place. Unlike conventional ADR/arbitration, the DRS does not require the parties to relinquish (or at least heavily restrict) their right to later go to Court on the same matter. It is therefore an Additional - not Alternative - Dispute Resolution when fighting a well finananced and determined opponent.