Toth v Emirates

[anthony]

I'm sure there is another case where the court ruled you must go through the DRS first, just cant recall what one it was. Surely this then blocks your ability to go to Court!

 

[afx]

Cuts both ways I guess. If nom experts rule that the registration was non-abusive, game over for the complainant.

As I understand it, it doesn't cut both ways. The complainant could still bring a case to court -- eg. passing off / TM etc.

 

[rob]

...and what if the DRS changes in the future?

Perhaps a change of thread title, or split, as the debate is not the domain.

Plus, has to be said considering the major implications its disappointing the general lack of interest on whats meant to be top .uk forum.

 

[rob]

Until we have some form of official body with a code of conduct that addresses public concern and perception of the domain industry then we're always going to struggle. The respectable businesses need to distance themselves from the others.

Totally agree.

 

[Rob_F]

...and what if the DRS changes in the future?

Good point and one I hadn't really considered when I replied earlier, at 5am.

I think this might not be the end of the story anyway. Will be interesting to see what happens when a big company is on the losing side of a DRS for a name they really want/need.

- Rob

 

[safesys]

Will be interesting to see what happens when a big company is on the losing side of a DRS for a name they really want/need.

as afx noted, the DRS isn't the end of the road for a complainant by any means. they can still bring a court case under trademark/passing off law. the emirates case is about whether a court will rule on a DRS case itself (ie declaring if a registration is abusive under the DRS policy) - Judge Mann said they won't. So as it stands, complainants have a route to get the domain they want without the DRS, registrants don't have a way to have a DRS appeals decision against them quashed.

I don't know if MT will be able to find a way to frame his case in law to get the kind of declaration that might satisfy nominet.

 

[crabfoot]

Completely facetious, but, if my memory serves me, Sony own the trademark EMI.

Would the way the judge interprets things allow Sony to object to everybody, including those Arab peoples' TM?

 

[safesys]

just to add, this sums up this particular decision:

http://www.bailii.org/ew/cases/EWHC/Ch/2012/517.html

This argument only works for Mr Turner if the contract constituted by the DRS leaves it open to the court to grant a declaration. If it is a contract which leaves the question of abusive registration to the expert (and appeal panel) then the court must decline to grant a declaration, either as a matter of jurisdiction, or as a matter of discretion (it does not matter which). I have already held that that is the effect of the contract, so the declaration route is not open to Mr Toth. In fact, his explanation of how the declaration would work is a further point which supports the case for saying that the DRS does not permit the court a role. To have the court decision operating in such an indirect manner would be a very odd position to put the court in. If it was intended that the court should have a role then one would have expected the contract to be structured so as to give it a more direct one.

- - -

Are we still waiting for a second part of the overall judgement from Justice Mann? I'm sure there was something else he was mulling over.

yeah, the final paragraph of this decision was:

It follows that I allow this appeal on the question of whether the court can grant the declaration sought. I find it cannot, and that the claim for the declaration falls to be struck out. This probably establishes the need to move on to consider the cross-appeal, and I shall do so on or after the handing down of this decision.

Will be interesting to see the nature of their cross-appeal - and to see the ramifications if they lose that. If a complainant goes to court to press their trademark/unregistered rights and loses, will nominet accept that as showing they don't have sufficient rights and to consider the ruling as a higher power than the DRS. I doubt they would given their dogged defence of the DRS.

So far MT has only failed on a technicality to get the underlying dispute heard by the courts - emirates have not had their rights tested yet.

- - -

over the years there has been a lot of big talk with domainers saying they consider the DRS irrelevant and that they'd just take it to court if they lost. At least MT has put his money where his mouth is on this as is trying - and it has woken everyone up to the elephant in the room: We simply may not have that option.

 

[rob]

If there is a dependence on 'experts' in the courts, my post to the Nominet forum regarding the courses run with Nominet themselves and the Experts to legal firms takes on greater importance.

Are the courts aware that such things go on I wonder?

 

[safesys]

If there is a dependence on 'experts' in the courts, my post to the Nominet forum regarding the courses run with Nominet themselves and the Experts to legal firms takes on greater importance.

Are the courts aware that such things go on I wonder?

I don't see how it would make any great difference unless someone decided to sue nominet and/or the experts themselves. It appears to me that Judge Mann simply said that the courts are not equipped to play the part of an expert in a contract that calls on an expert to make the determination for abusive registration - a call that is made under the DRS policy rather than law.

Safesys, do you know if Michael is funding this himself or have others helped with the costs? And following on from that, if he is funding this wholly by himself, do you feel that we as an industry would benefit from him winning the case and should therefore perhaps set-up a fund to help him financially?

no idea on how it is being funded.

there are 2 elements to it:

1) the ability as a registrant to have the courts determine rights and have that finding render a DRS appeals decision moot

2) the question of emirates legal rights vs MT's - emirates can elect to get an answer to this through the courts, whether MT can depends on the above.

The first prong is the big one for registrants as a whole - and that's the one that has been ruled on when framed the way MT did.

The second is personal to MT and will likely consider how it was used, MT's track record etc.

a fund would be up to people who want to help the cases he is involved in and whether MT would accept it.

 

[anthony]

If there is a dependence on 'experts' in the courts, my post to the Nominet forum regarding the courses run with Nominet themselves and the Experts to legal firms takes on greater importance.

Are the courts aware that such things go on I wonder?

More importantly, the 40% or so of DRS's which are overturned on appeal should have any high court judge asking serious questions about the reliability of the DRS process in the first place.

 

[safesys]

More importantly, the 40% or so of DRS's which are overturned on appeal should have any high court judge asking serious questions about the reliability of the DRS process in the first place.

why? A DRS appeal is relatively expensive, it follows that appeals are more likely to be filed where there is an expectation of an overturn.

 

[domainking]

So nominet is the judge, jury and ultimate god in all things .uk not the british courts....Hmmm

Toth should sue Nominet now to force them to change their rules.

Seems grossly unfair that in now if you wanted to challenge a ruling you have no recourse.

Its a fucking outrage. If you suffer an injustice you must be able to appeal to the highest court in the land for justice to be served.

Yes this is English law but we also have " Scottish law"would think that a case would also have to go into Scottish courts for a ruling with regards to this.

 

[anthony]

You've quoted the 40% figure before and I believe I have also previously pointed out that the way you state it is misleading. I think you mean to say that 40% of all DRS decisions *that are appealed* have the original decision overturned. It certainly isn't the case that 40% of all DRS decisions are overturned on appeal, which I want to make sure is absolutely clear here!...

? You're correcting something that didn't need correcting. My comment was very clear, AND TRUE, which is that 40% of DRSs are overturned on appeal.

...The fact that 40% of the DRS decisions *that are appealed* have the original decision overturned could be because one party had a genuine belief that the original decision was wrong...

Well stating that belief is pretty obvious really, dont you think? But just because they believe it is wrong, it doesn't follow that they are right until put to the test. Importantly from your viewpoint, it also doesn't default to a position that all the other DRS decisions were therefore correct. Unless they too go to appeal, you could never know whether they could be overturned. Yes there are many DRS decisions that are blatently obvious are correct, but it doesn't follow that they all are.

...People think carefully before they appeal...

Exactly, and that decision will boil down to matters such as whether they can afford to appeal, or whether there is a value (of whatever nature) in the domain to merit them spending and appealing. That's going to be a minimum £3,600 decision in every case, it is totally naive to ignore this and then expect to uphold all non-appealed decisions as therefore valid and correct.

What is your opinion about the high percentage of appeals being overtuned, and how the original 'experts' (that always makes me laugh) got it so wrong?

 

[safesys]

it is totally naive to ignore this and then expect to uphold all non-appealed decisions as therefore valid and correct.

you're making a straw man argument there - that is not what he said at all

One cannot simply suggest that because perhaps 40% of DRS decisions that are appealed have the original decision overturned, the entire DRS is flawed.

that is a correct statement. given the very low ratio of appeals to decisions, appeals themselves don't really shed any light on the efficacy of the drs as a whole. drs appeals are inherently skewed towards cases where there is an expectation of the decision being overturned by their very nature.

if anything, it suggests that the appeals process is not biased towards keeping the status quo and not upsetting the experts who delivered the original decision. that's a good thing.

 

[wb]

What is your opinion about the high percentage of appeals being overtuned, and how the original 'experts' (that always makes me laugh) got it so wrong?

As it's a relatively similar procedure, it could be useful to compare the DRS figures to that of convictions in the UK:

Criminal Cases Review Commission 2010/11 ('Outcome of referrals heard', p. 18).

From a total of 33 referred convictions that actually got to the appeals stage, 20 had a positive outcome (~60%) and 13 were dismissed (~40%).

Those figures may look high (50% higher than DRS based on it having only a 40% success rate), but only ~2.5% of all cases closed actually got through to the appeals stage where those figures apply.

Couldn't seem to find a referenced figure for the percentage of all DRS decisions that are appealed, although I did only have a quick look. This news bulletin suggests on p. 8 it could be just 0.01%, far lower than for criminal convictions.

 

[anthony]

...drs appeals are inherently skewed towards cases where there is an expectation of the decision being overturned by their very nature...

Why is there an expectation? What sets those original decisions apart? If they were not appealed, they'd stand just like all the others? As I've said, £3,000+ VAT is a high enough price to pay to put most people off launching an appeal. Given you cannot introduce any new evidence etc, it boils down mainly to a complaint about the manner of the original decision, in which case Nominet should be accepting the appeal in the basis of a complaint, without cost, just like many other complaint procedures found elsewhere.

40% of appeals overturned is a fact, but making one of the parties pay more independent experts for a review is a strange kind of 'good practice' in my book!

...if anything, it suggests that the appeals process is not biased towards keeping the status quo and not upsetting the experts who delivered the original decision. that's a good thing.

A good thing? For independent decisions that an absolute requirement, not something to be thankful for!

The DRS is not as independent as it should be, it's long overdue that it is removed from Nominet's scope of responsibility completely, something I suspect will happen sooner or later. And the appeals decision should always mirror the IPO model, where it can go to either an appointed person or the High Court.

 

[safesys]

Why is there an expectation? What sets those original decisions apart? If they were not appealed, they'd stand just like all the others?

I don't understand your point. The losing party gets to look at the decision and the basis upon which it was made - and if they believe the decision was made in error, they can then pay a relatively large sum to have it corrected. Ergo, they have an expectation of a win - it would be a waste of money to pay for a case that they don't really think has any chance of being overturned. If the appeals fee was a trivial amount it would be worth people taking more a "punt" approach to appeals - although a loss at appeal is more "serious" than a loss under a single expert so they may weigh up how it might reflect on them in addition to the cost.

40% of appeals overturned is a fact, but making one of the parties pay more independent experts for a review is a strange kind of 'good practice' in my book!

Individual experts can go off-piste and render poor decisions - a 3 person panel costs more to administer and the fee also acts as a fiscal filter for appeals to skew it towards winnable cases. Why wouldn't you want a means of having a low-cost initial single expert decision checked?

A good thing? For independent decisions that an absolute requirement, not something to be thankful for!

we live in the real world - not utopia. the drs isn't perfect, but I'd take it over the udrp any day of the week.

The DRS is not as independent as it should be, it's long overdue that it is removed from Nominet's scope of responsibility completely, something I suspect will happen sooner or later. And the appeals decision should always mirror the IPO model, where it can go to either an appointed person or the High Court

the whole point of the drs and all other dispute services, is that they are a relatively low cost and quick means of getting redress. The nominet approach with mediation and an in-built appeals process makes it a pretty balanced system on the whole.

You throw things to the courts and you bring in cost, delays and damages. That would be a barrier for many small businesses to get justice on either side of the equation.

I agree though that there needs to be a way for the courts to make a final determination as to whether the registrant is entitled to hold the domain or not under UK law.

 

[anthony]

A bit of a twist on things:

http://www.itv.com/news/2012-04-08/londons-ski-resort-style-cable-car-system-emirates-air-line/