Here are some FAQs:
What is Nominet’s DRS?
Is your domain name dispute about a UK domain name, e.g., .co.uk, .uk, .org.uk? If so, you may be able to recover it under a type of arbitration procedure called the Dispute Resolution Service, also known as the “DRS”. Nominet UK, the UK internet naming authority, set this up in 2001. It’s automatically part of the contract when someone registers a .uk domain name.
What do you have to prove under the DRS?
To succeed with a Nominet UK DRS complaint, you have to prove to the DRS “Independent Expert” (i.e. adjucator):
First, that you have “rights” in a name which is identical or similar to the domain name. Different kinds of rights can qualify. Registered trade marks for example. And unregistered trade marks, also known as “common law rights”. These are based on reputation resulting from use of the name, such that it has become “distinctive” of the complainant. Though it’s not enough just to assert this. You have to provide sufficient supporting evidence. You can also rely on your personal name in some circumstances.
Second, you have to show that the domain name is an “abusive registration”.
What is an abusive registration?
Nominet define an abusive registration as one that either:
- took unfair advantage of, or was unfairly detrimental to, the would-be complainant’s rights at the time of registration or acquisition
Or one that:
- has been used in a manner which took unfair advantage of, or was unfairly detrimental to, the same rights
This abuse can relate either to
- the circumstances in which the registrant registered the domain name or
- the way the registrant used it.
Abusive conduct can have taken place at any point since the original registration and covers all uses of the name, including email.
A domain name registration which could have been fair initially, maybe with the parties in agreement and no objections raised, can become abusive later if the agreement breaks down or the registrant begins to use the name in a substantially different way, or their motivations clearly change. This is different to the UDRP (for .com and other gTLD domain names) which requires registration and use in bad faith. Under the UDRP, once the registrant originally acquired the domain name in good faith, it doesn’t matter if they later act in bad faith. Court is likely to be the only option in that case.
Registering a domain specifically in order to try and sell it back to you, as a trade mark owner, at a profit would constitute abuse.
Other examples might include registering a domain name:
- To prevent the other party from acquiring or using it
- To disrupt the other person’s business
- To confuse internet users looking for the other party’s website
- To otherwise give themselves an unfair commercial advantage
By contrast, the respondent may be able to put forward valid defences to the claimant’s allegations. These might include showing:
- that they are using the registered domain name for a legitimate business, or have genuine plans to do so.
- that the name is generic and the claimant has no valid claim on it
- that the name is being fairly used in tribute (for example, a fan site) or for fair criticism
Each case will of course be different. But, whatever the circumstances, you have to provide sufficient detail and supporting documents to establish abusive registration. Otherwise the DRS case will fail.
So what are the stages in typical DRS case?
A typical DRS dispute is made up of five key stages, not all of which will occur in each case:
A person or company raises a dispute via the Nominet Online Services tool, thereby becoming the complainant. Complainants not already registered with Nominet will acquire an account via this process.
The organisation will then inform the owner of the domain name, the registrant, via email and/or post. The registrant then legally becomes the respondent in the dispute. If the user of the site is different to the registrant, they will usually also be informed.
The respondent then has a limited time in which to respond. If and when they do, they can accept the claims made and agree to the proposed remedies, or they can say why they do not agree – submitting evidence, for example, that they have legitimate rights to the name. The complainant is then given the opportunity to comment on this response in a “reply”.
If the respondent disputes the claims, they and the complainant may enter voluntary, confidential, non-binding mediation. This will be facilitated by a trained and accredited Nominet mediator who will take a strictly neutral role in the process.
If mediation is unsuccessful or one or both parties decline to take part in mediation, then an independent adjudicator, referred to as the ‘Expert’ can be appointed at this stage. The complainant must pay a variable fee for this.
The expert will make a ruling on the dispute, either accepting the complainant’s case or dismissing it. If the respondent did not reply to Nominet before the deadline, the complainant can request a ‘summary decision’ – i.e. a shorter “yes or no” decision without detailed reasons.
The losing party in the Expert’s ruling may appeal, although this is uncommon. There is a deadline of ten days from the initial ruling in which to file any appeal, and this will be heard by a panel of three Experts. A fee again applies.
Alternatively the losing party may decide to take the matter to court. Though courts generally do n
This final stage is the point at which any domain name changes are made: these may be a transfer in ownership (by far the most common), allowing you to reclaim the domain, a cancellation of the domain name, or a suspension. This may reflect agreements made in mediation or a ruling by an Expert. Any Expert decisions will be published on the Nominet website.
You can’t be awarded damages or costs under this procedure.
What are the DRS timescales?
A claim that proceeds through every stage could take between two and three months.
The complaint will be reviewed and validated by a Nominet staff member within three working days. The respondent will then have 15 working days in which to make their own submission in reply. The complainant then has an additional five days in which to respond to that submission (if any is made) and to address points raised.
The voluntary mediation discussed above generally takes around ten working days. If the dispute goes to an expert, they will make a ruling within 15 working days.
Finally, a further ten working days are set aside for the losing party to submit an appeal if they wish to do so.
Are previous Nominet decisions relevant?
Though previous Nominet DRS decisions are not binding on a Nominet expert, they are persuasive – particularly Nominet appeal panel decisions. Familiarity with these can give a good indicator of whether a case is likely to succeed and it helps to cite previous relevant / favourable decisions in DRS submissions by either side.
What are the DRS fees?
At the time of writing, unlike most similar procedures, there are no fees to filing a DRS complaint. Once the submissions are complete, Nominet conducts a telephone mediation. If that doesn’t resolve the case, then the complainant can pay Nominet a fee of £750 plus VAT to obtain a decision by an independent expert. If there’s no response, there’s no mediation and the the complainant can opt to pay just £200 plus VAT for a “summary decision”. The appeal fee is £3,000 plus VAT, payable by the appealing party. These official fees don’t include any legal costs involved in preparing complaints / responses / appeals.