Is Nominet's policy killing the domain name secondary market ?

[Nigel]

I've not examined the TM myself, as of yet, and I will do later on today. However, if it is as you say then I don't know. You can always email the Independent Expert and ask him yourself. Why don't you? I'd like to know too.

I think that is something the original registrant of alternate.co.uk should do if he is reading this forum

 

[domaingenius]

It may be that the TM wasnt the thing that swayed it although I know it was mentioned. Bear in mind that a TM can be granted years after a party has started using that same name and they have IP rights even before they get a trademark. There are many examples of companies that have IP rights in a name but dont have an official TM. Still very unfair. If it was down to the Court to Judge it I doubt that they would have got the name.

DG

 

[Nigel]

The trademark seems to me to be the pivotal piece of evidence. The claimant relies upon it and the expert specifically mentions it. That is why the date of the trademark would appear to be so important. If it wasn't the trademark what else is there? The expert's report mentions 'Copies of various computer magazines in Spanish, Dutch and German which contained Complainant’s advertisements were annexed to the Complaint' which begs the question where were the computer magazines in english bearing in mind they were pursuing a UK domain???

 

[bb99]

I feel it's a very loose complaint and is much more about an Independent Expert putting Respondents on notice that if they fail to respond, even if you have a generic name, you might actually lose it.

A great reminder to keep WHOIS contact info up to date...

 

[Nigel]

One further thing

Visit the home page of www.alternate.net and you will be asked to select the country of your choice. Choose from the flags of:

Germany
Spain
Holland
Austria
Belgium

Which again begs the question - where is the Union Jack? They say in their complaint that they trade 'throughout Europe including the UK' but the website's homepage doesn't show this and the computer magazines sent to Nominet don't show this. So what does a UK visitor do when he arrives at the alternate.net homepage? If it were me I would simply leave the site. This is a tad important don't you think :???:

 

[domainder]

I always thought that the date of a trademark was important in deciding if something was an abusive registration i.e. how can it be an abusive registration if there was no trademark in place at the time? I would be interested to hear anyones views on this as I always thought it was an important factor.

Many people make the mistake thinking that Nominet DRS is the same as UDRP.

Nominet DRS is very very different to UDRP.

Nominet DRS http://www.nominet.org.uk/DisputeResolution/DrsPolicy/
URDP http://www.icann.org/dndr/udrp/policy.htm


UDRP requires the domain name to have been registered in bad faith AND used in bad faith.
Nominet's DRS requires that the domain name to have been registered in bad faith OR used in bad faith.

With Nominet's DRS the challenger doesn't even need to have a registered trademark and it doesn't matter if your domain name has been registered years ago and the challenger's first use may only be very recent.

Nominet lawyers cunningly put the word OR into the policy which means that the date of registration and circumstances of registration are virtually ignored.

Coupled with the fact the challenger doesn't even need a registered trademark, this means that a large company with their eyes on your domain name can set up a brand, then either try to entrap you or claim that some of their customers are confused and use Nominet's DRS to grab the domain name.

 

[carissima]

http://www.iprights.com/indexwill.asp

The Nominet DRS policy was launched by Willie Black (Nominet Chairman) and Tony Willoughby (appointed Chairman of Experts for Nominet UK) of Willoughby & Partners

 

[Nigel]

Unfortunately it's irrelevant. The first hurdle of the DRS is dead easy to jump. All a Complainant has to do is prove that "Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name". It's that unspecific. So the rights do not have to be registered (i.e. no need for a Registered Trademark) and they don't even have to be relevant to the UK. You could be a sole trader in the Christmas Islands doing business with Australians and you'd still be able to jump the first hurdle, as long as you could demonstrate that you had Rights in respect of a name or mark which was identical or similar to the Domain Name at issue.

I can't agree with your assumption that a foreign company which doesn't even trade in the UK has rights in a .co.uk domain as this is completely at odds with the service Nominet says it provides to the 'the UK internet community'. Indeed they say on their own website 'Nominet is not a governing or regulatory body, but provides a public service for the .uk namespace on behalf of the UK internet community'.

This term the 'UK internet community' is mentioned time and again presumably because .uk is intended for our own domestic market. So how can a German company that has apparently provided no proof (if they did send any to the Nominet expert it was not included in the report) of any UK presence be deemed part of the 'UK internet community'. Ironically, the company that has lost the name was part of the 'UK internet community'.

 

[retired_member6]

I've heard the defendent actually has to pay the fee to defend himself, is that right? farcical if it is. Nominet should simply lay down a list of rules, not a - z and pick any letter you want, if they have to spend all the money they have, then that's the least they can do.

 

[EdPhillips]

I've heard the defendent actually has to pay the fee to defend himself, is that right? farcical if it is.

Respondents in DRS cases do not have to pay any fee. Obviously, if a respondent wants to pay someone to write the response for them, that will cost. Equally, either side can pay for an appeal, if required, but that's not compulsory.

Nominet should simply lay down a list of rules, not a - z and pick any letter you want, if they have to spend all the money they have, then that's the least they can do.

The rules are there - that's what the DRS policy and procedure are for.

 

[domainscot]

what you all have to remmeber under eurpoean law artical 82 to 86 every business has the right to trade and the fasct that some one is stealing you name you can always take it to european court. ps for legal reasons i wonder if nominet is classed as a cartel with regards the .co.uk and if so then nominet could breaking european law.
very intresting indeed

 

[domainscot]

ps i also have to add every time i have spoken to nominet about domain names i personally think the guys do a great job.
their lawyers who work for nominet are very respected people in my view.
its in there intrest to make sure no one is breaking the rules.
and this is coming from a person had domain battles with lawyers.
the people in the legal department and nominet itsself i find provide a good service but i can also say that the so called experts on domain names not all of them are in it for the good on nominet but for self intrest only

 

[sneezycheese]

I think it's interesting that many believe the DRS process is conducted by Nominet. As you will know, Nominet itself has very little to do with an enacted DRS. None of the Mediators or the Independent Experts are employed by Nominet yet there is still a belief that Nominet is the decision maker in each case.

Not 'entirely' true Please see quotes from Nominet's DRS Proceedure below:

"Dispute Resolution Service means the service provided by us according to the Policy and this Procedure;"

"Informal Mediation means impartial mediation which we conduct to facilitate an acceptable resolution to the dispute;"

As someone who is in the middle of a DRS case at the moment, I can confirm that the Mediator's who I've communicated with work within Nominet's Legal Dept.