In a recent article in The Lawyer (29 September), Philip and Mark Engelman commented on the operation of the Nominet UK Domain Name Dispute Resolution Service (DRS). Nominet UK is a not-for-profit company charged with the administration of the .uk domain and sub-domains (notably .co.uk). Along with many other organisations responsible for the operation of a country code, top-level domain Nominet UK has introduced its own dispute resolution service, designed to be a cheap, effective procedure enabling rights owners to relieve domain name registrants of abusive domain name registrations. It was arrived at after a period of public consultation and input from representatives of key stakeholder groups, including trademark holders.
All registrants of domain names in the .uk domain sign up to the DRS, full details of which are to be found at Nominet UK’s website (www.nominet.org.uk).
When a complaint comes in to Nominet UK, the registrant is given the chance to respond and the complainant may then lodge a reply. This is followed by confidential mediation operated by Nominet UK staff at no cost to the parties. Over 50 per cent of disputes are resolved at this stage. If unsuccessful and the complainant pays the prescribed fee, the dispute is referred to one of a panel of independent experts. If either party is still unhappy, for a further fee there is an appeal process. All decisions are published on the Nominet UK website. The issue can be referred to a court at any stage.
In their article, the Engelmans commented as follows: the Nominet DRS does not mirror UK trademark law; domain name registrants may get a rougher deal with DRS than if they were sued for trademark infringement in the courts; there is no scope for further appeal apart from a possible judicial review; if judicial review of experts’ decisions under the policy were to be available, the original registrant of scooby-doo.co.uk might have got a better result on such a review.
As the presiding member of the appeal board in the scooby-doo.co.uk decision, it would probably not be appropriate for me to comment on this last point. Happily, I am unable to do so and not least because, apart from observing that illegality, irrationality and unfairness are grounds for a reviewable decision to be reversed, the authors do not specify in what respects the scooby-doo.co.uk decision is defective.
The general tone of the article is that the DRS is unfair, but the authors do not specify how. The reader must guess. The inference is that, because the DRS does not mirror UK trademark law as operated by the UK courts, domain name registrants can be unfairly deprived of their domain names in circumstances where a court dealing with allegations of trademark infringement would have found in their favour.
If the DRS had ever been intended to be an alternative to a trademark infringement action, the authors would have had a point, but that is not the case. The concept of abusive registration under the DRS goes way beyond infringement of trademark rights. Paragraph 4(b) of the policy, for example, expressly contemplates the possibility that a non-commercial tribute or criticism site may constitute an abusive registration.
Nobody associated with the DRS would wish it to be anything other than a fair and open process for resolving particular categories of disputes. For my part, I believe it to be just that. It gives both parties the opportunity of making representations; it incorporates a free mediation service; if that fails, the dispute is referred to an independent expert for a decision and an appeal procedure is available to the losing party. All decisions are published.
In Internet Advisor (March 2003), a commentator on the operation of the .uk domain had this to say: “Those who have registered a .uk domain name are lucky to have the back-up of Nominet UK’s excellent Dispute Resolution Service.”