Question for Nominet

[domaingenius]

One thing I'm not so sure people realise is just how broad a church Nominet is. We have thousands of members with different points of view as well as millions of registrants and other interested parties that all need taking into account. This makes our policies (and changes to them) well discussed and consulted upon and that often takes quite a long time because of the range of people we need to speak to.

There are times when we don't explain how we got where we are well enough and this may well be one of them. But in our defense, that is generally because these are very involved and complex points that can only properly be answered by someone who knows the answers in real depth. This is of course why I keep away from some of the DRS stuff discussed because I don't know it well enough. Whereas of course for many of you, this is a key part of your livelihood and so are able to discuss this in real depth.

So, if our answers sometime comes across as us knowing better than you then I apologise, because of course they shouldn't. For us to find the time to engage at the level of detail and explanation needed on AD is tricky. Particularly as this has a degree of real-time interaction to it. This is of course something we would like to improve, but as I said we are a broad church and have a lot of ground to cover.

To be honest Jay, the issue of Without Prejudice letters is a fairly simple one. As is obvious, to allow without prejudice letters to be read by the experts goes against commonsense IF ,and I stress IF, one is seeking to avoid conflict. The only thing that I saw that was mentioned as problem in the review of 2004 is that Nominet did not think they had the expertise to remove such without prejudice letters. That simply is not an excuse that will wash as anyone can read the words ,and it could be made a condition that without prejudice has to be inserted in a particular place on a letter ,making it easy for assistant to remove them from the file. In fact if you allowed the letters to be excluded it would in turn mean that there were much less DRS's as people could talk. As it is we now have to just clamp up and not talk for fear of saying wrong thing to wrong person.I just cannot see any sense in it unless Nominet want to have many more DRS's as revenue earner !.The "experts" are going to be quite happy as they will earn more and so no wonder they voted against excluding them.

DG

 

[grandin]

It will come out in the wash

Beasty it will come out in the wash:-

The DRS states

Negotiations conducted between the Parties during Informal Mediation (including any information obtained from or in connection to negotiations) shall be confidential, that is they will not be shown to the Expert. Neither we nor any Party may reveal details of such negotiations to any third parties unless a court of competent jurisdiction orders disclosure

A judge will surely judge on facts before him/her AND if him/her wants to know what was said he/she can

Lee

 

[olebean]

If I were to try to find some middle ground between our views it would be to say that whilst Nominet is a broad church for business and governmental membership, you feel it could go much broader with individual membership?

Why is there even a question mark placed against individual membership?

 

[domaingenius]

Beasty it will come out in the wash:-

The DRS states

Negotiations conducted between the Parties during Informal Mediation (including any information obtained from or in connection to negotiations) shall be confidential, that is they will not be shown to the Expert. Neither we nor any Party may reveal details of such negotiations to any third parties unless a court of competent jurisdiction orders disclosure

A judge will surely judge on facts before him/her AND if him/her wants to know what was said he/she can

Lee

I cannot believe that "A" Court will take notice of a third party (Nominet/DRS expert) saying that the documents will not be disclosed. IF they were marked "Without Prejudice" then they could not be disclosed to the Court unless a specific order was requested and made, but standard disclosure would require that ALL documents be detailed in a disclosure form as one has to swear that all have been disclosed. On the disclosure form you would have to disclose that "a" documents exists to which privilege attaches (i.e. without prejudice)
but not disclose contents. Lets say we exchanged without prejudice letters before DRS ,then went to informal mediation ,the Court would still not be allowed to view without prejudice letters unless a specific order was sought challenging the privilege status ,which is highly unlikely to succeed.

DG

 

[Beasty]

If I were to try to find some middle ground between our views it would be to say that whilst Nominet is a broad church for business and governmental membership, you feel it could go much broader with individual membership?

Agreed - but I can't imagine the current membership sanctioning an opening up of the system.

 

[grandin]

good point

Good point dg, could this happen:-

Both parties go to court. One party says....Did you or did you not offer to sell the domain name for an amount in excessive of your out of pocket expenses?

The other party made the offer to sell under the mediation.

The other party would be under oath to tell the truth???

Lee

 

[domaingenius]

Good point dg, could this happen:-

Both parties go to court. One party says....Did you or did you not offer to sell the domain name for an amount in excessive of your out of pocket expenses?

The other party made the offer to sell under the mediation.

The other party would be under oath to tell the truth???

Lee

From my Court experience, and god only knows I have too much of that (as a civil claimant I hasten to add) if a without prejudice offer was made then the receiving party cannot tell the Court of that. However as regards mediation, I doubt that you could withold offers made in mediation ,at all, UNLESS it was made on a without prejudice basis within the mediation proceedings .I doubt many bother putting "without prejudice" and that could come back at them in Court.

As I say, I find the whole DRS illogical and they seemed to have grabbed bits from there, bit from here etc. i.e. TM's are allowed to be raised by the complainant to make the complaint in the 1st place, BUT then the respondent is NOT allowed to say "well the TM would not stand up because it was only granted because the letters were all funny shapes and colours" , and this point about ignoring without prejudice status prior to DRS.

DG

 

[grandin]

Jumble

Yes DG.... a jumble sale...everything 5p but doesn't work anymore

Seriously, reliance is placed on complainants proving rights by waving trade marks but the experts are saying trade mark infringement or passing off is for the court to decide....

Surely this is a contradiction?