As a domain dispute panellist for over 15 years including UDRP (.com) and Nominet’s DRS (.uk), I’ve had the pleasure of reading more than 350 complaints. While they come in all shapes and sizes, certain mistakes tend to recur. Based on my experience, I thought it might be helpful to set out my top 10 tips to help complaint-drafters avoid the most common pitfalls.
NB This is an entirely personal view. Some of my panellist colleagues may disagree with me, though I suspect many will agree – having heard their views in panellist meetings over the years!
1. Read the Policy
Every domain arbitration system rests on a core policy document, e.g., the Uniform Dispute Resolution Policy (UDRP) for .com etc and Nominet’s DRS Policy for .uk domains. The policy tells you exactly what you have to prove in order to win your case. Read it before you put fingers to keyboard to start your complaint. Not doing so is a bit like going off to argue a constitutional law case before the US Supreme Court without having read the US constitution!
2. Read the Overview
You also need to know, and take account of, the general approach which previous panels have taken in relation to the important issues which crop up in your case. The day have long passed since it was feasible to stay reasonably abreast of all domain dispute decisions; these now run to the tens of thousands. Fortunately, there are authoritative overviews (WIPO Overview 3.0 and the Nominet DRS Expert’s Overview) which explain consensual panel views on a range of important substantive and procedural issues, including links to illustrative decisions.
3. Investigate
Having figured out the key points to address / prove, it’s time to investigate the registrant. Critical things to check are likely to include: when the registrant registered or otherwise acquired the domain name and exactly how registrant is using – and has previously used – the domain name. Plus details of other domain names owned by the registrant, in case there is a relevant pattern of conduct. There are various archive and other tools available to help with this.
4. Reassess
Right, you should now have a clearer view of the way ahead, including any obstacles. Take a deep breath and consider whether you have a strong enough case to justify the cost and effort of pressing on. Do you have the necessary “rights” to get to first base? Is there good reason to argue that the domain name was registered / used to target you in accordance with the principles in the relevant policy? Or is it rather that you’d like the domain because say it matches your business name and perhaps, annoyingly, the registrant has refused to sell it to you at a price you think reasonable and is simply “sitting” on it – a mindset which often results in a rejected complaint.
5. Structure your Complaint
So, you’re feeling confident and ready to get going on your complaint. I suggest you make things as easy as possible for the panellist by structuring it in a clear and logical way. The template complaint forms tend to point you towards the following approach, which is a good one in my view: First, a chronological account of the facts – both in relation to you, the complainant (frequently the nature and extent of the complainant’s commercial activities by reference to the relevant name is crucial to the case) and the respondent (e.g., its acquisition and present / past use of the domain name, its interactions with you etc). Then, discuss each element of the policy, applying the facts and drawing your conclusions
6. Stick to the Point
Citing random, or a long list of, cases in support of a generally-accepted principle is unlikely to add much to your complaint, except cost. Better simply to refer to the relevant section of the overview – unless the cited case has a special significance, e.g., it’s one of the “iconic” cases (such as “Oki Data” regarding resellers and “Telstra” regarding passive holding, both under the UDRP) or it’s an appeal decision under Nominet’s DRS, or the cited case is based on strikingly similar and unusual facts to yours. Also, if you can, give panellists a break by trying to avoid lengthy and repetitive legal conclusions incorporating grandiloquent statements of trade mark law which may be of little relevance and, instead, stay focussed on exactly what you have to prove under the policy.
7. Evidence, Evidence, Evidence
Generally speaking, every factual statement should be backed up by a credible, dated and cross-referenced document exhibited to the complaint. Ok, if you’re a tech giant such as Google or Facebook telling us about the vast reach of your business, you won’t need to work very hard on this aspect of the complaint. And there may be some leeway on peripheral issues, particularly if the case is ultimately undefended. But by and large you’re taking quite a big risk if you don’t support your factual claims. The panellist may decide simply to ignore them.
8. Evidence, Evidence, Evidence!
Please re-read the previous tip. It’s so important. Failure to provide supporting evidence is probably the main reason why otherwise deserving complaints fail. Oh, and don’t say something like: “The Complainant can provide more information on request.” The panellist has the power to ask but may well decide not to do so!
9. Don’t Sidestep Inconvenient Facts
Let’s say the complainant has said something a bit rash in pre-action correspondence. Or maybe you’ve found an archive website screenshot which suggests that the respondent may have had a legitimate basis to register the domain name. Rather than concealing this information, I suggest you get some Brownie points from the panellist by producing the unhelpful evidence and dealing with it as best you can. Otherwise there’s still every chance that it will come to light – perhaps as a result of the panellist’s own research or maybe it will be unveiled with a flourish by the registrant’s lawyer who suddenly pops up and files an unexpected response. If so, your reticence will make the evidence many times more damning. Indeed, if the panellist thinks that you set out to mislead, this could result in a finding of “reverse domain name hijacking”, a very public black mark against the complainant and/or its lawyer.
10 Proofread
Finally, before filing your magnum opus, take a break, make yourself a cup of coffee and then carefully proofread the whole thing. That will help you avoid embarrassing mistakes, such as the surprisingly common scenario where a complaint leaves some traces from a template used in a previous case – including references to the wrong domain name and exhibiting the wrong evidence.
I hope these tips are of some help to you. Of course, a thoroughly researched and immaculately presented complaint won’t help if you have a hopeless underlying case. But the quality of the complaint can make a difference where the merits are more evenly balanced. And a weak complaint can completely undermine a strong legal position.
That’s it. Happy complaining!
