4.6 Bad Faith of Complainant. If the Registrant is successful, and the Registrant proves, on a balance of probabilities, that the Complaint was commenced by the Complainant for the purpose of attempting, unfairly and without colour of right, to cancel or obtain a transfer of any Registration which is the subject of the Proceeding, then the Panel may order the Complainant to pay to the Provider in trust for the Registrant an amount of up to five thousand dollars ($5000) to defray the costs incurred by the Registrant in preparing for, and filing material in the Proceeding. The Complainant will be ineligible to file another Complaint in respect of any Registration with any Provider until the amount owing is paid in full to the Provider.
Waste of time and money
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4.6 Bad Faith of Complainant. If the Registrant is successful, and the Registrant proves, on a balance of probabilities, that the Complaint was commenced by the Complainant for the purpose of attempting, unfairly and without colour of right, to cancel or obtain a transfer of any Registration which is the subject of the Proceeding, then the Panel may order the Complainant to pay to the Provider in trust for the Registrant an amount of up to five thousand dollars ($5000) to defray the costs incurred by the Registrant in preparing for, and filing material in the Proceeding. The Complainant will be ineligible to file another Complaint in respect of any Registration with any Provider until the amount owing is paid in full to the Provider.
As enforcement measures go, I think that's pretty weak.
A more effective deterrent would be requiring complainants to pay the summary decision fee at the very outset, or at least before the respondent is required to submit a response.
I think that would smoke out most of these stupid claims before the respondent is put to the time and expense of defending the claim.
I've been asking for this for a while, I've not heard anyone at Nom disagree with it - but still nothing seems to be in the pipeline for change.
I think there does need to be some review of the DRS, has it been over 10-15 years now since the last major update?
With regards this, I wonder if Nom can place into the DRS contract that the complainant agrees to pay the Respondent a max amount up to X if they are hit with a costs award of somekind.
The Respondent could then use it in the County Court to recover it themselves?
That would be ideal, but it doesn't benefit Nominet in any way so I can't see it happening. They'll just make us continue to work for free.
I would have said in our case, when I can prove they were lying the penalty should be in the thousands of £ lol. In this case of the OP I'd like to see him lose at least £1k in compo to the owner for this stunt.
That looks perfect for me, Nom just need to copy/paste that into their T&C's.
Of course you're going to run into some problems actually collecting the money, but its better that than people being locked out of a proper chance for justice on their stolen domain name if the application process becomes too expensive.
Let the expert decide how much to award based on the level of dishonesty/lack of merit and the amount of work they created for the other side with it.
Right, well this has taken a bit of an unexpected turn. I've been doing some research on this and what I have found is, well eye opening. After 20 years in the business, this is new on me. I was exploring the recovering of costs issue mentioned above.
None of us are required to go down the DRS route, I always knew this was true for complainants - Easy Group are well known for going to Court and ignoring the DRS. What I didn't know is that is can be done even by as Respondents. I never knew any of this until 2 days ago. I thought Nominet's Registrant terms and conditions bind you (The Registrant) into the DRS Policy - and it does, but that Policy also says that if you start Court Action, the DRS will be suspended. I was aware of that, but I could never work out how a respondent could start the action.
So on what grounds could you start Court Action as a Respondent? This has always been the tricky part. Well it turns out that you can ask for Declaratory Relief.
For example you could ask a Judge to declare
1) Declaration of non-infringement (core)- A declaration that the registration and/or use of the domain name does not infringe the Claimant’s registered trade marks or unregistered marks.
2) Declaration of no passing off - A declaration that the Defendant’s registration and/or use of the domain name does not constitute passing off.
3) (Optional but useful) Declaration as to entitlement - A declaration that the Defendant is entitled to continue to hold and use the domain name.
For example, you get notified of a DRS incoming. You immediately send a letter before action giving the Complainant 14 days to withdraw the DRS or you will ask a Court to make those (or similar declarations) and that you will ask the Court for costs involved. After 14 days, file the Court stuff, and send Nominet a copy - the DRS will be suspended and things will flow through the Courts. You can even ask the Court for the Complainant to put up surety of costs.
I have checked this, and checked it, and checked it again.
They can feck right off if they think I'm ever going down the DRS path again, I'm off directly to Court. Maybe I'm a bit biased after recent events, but I now see the limitations of going down the DRS route when there is no possibility of cross examination (for either side) or the judge to ask questions why you did what you did and really drill down. Just for the record, I couldn't have done this in mine because the Respondent didn't exist, the Judge would have asked who do you want me to make a declaration against? So it's not sour grapes, it wouldn't have helped me. Of course you need to be sure of yourself before going down this route because if you lose then the costs are going to be great.
Maybe DRS complainants would think twice if they were going to get hit with costs, well this is the way to do it. I'm not telling anyone to do this, just that it can be done in principle.
As ever, take your own legal advice.
None of us are required to go down the DRS route, I always knew this was true for complainants - Easy Group are well known for going to Court and ignoring the DRS. What I didn't know is that is can be done even by as Respondents. I never knew any of this until 2 days ago. I thought Nominet's Registrant terms and conditions bind you (The Registrant) into the DRS Policy - and it does, but that Policy also says that if you start Court Action, the DRS will be suspended. I was aware of that, but I could never work out how a respondent could start the action.
So on what grounds could you start Court Action as a Respondent? This has always been the tricky part. Well it turns out that you can ask for Declaratory Relief.
For example you could ask a Judge to declare
1) Declaration of non-infringement (core)- A declaration that the registration and/or use of the domain name does not infringe the Claimant’s registered trade marks or unregistered marks.
2) Declaration of no passing off - A declaration that the Defendant’s registration and/or use of the domain name does not constitute passing off.
3) (Optional but useful) Declaration as to entitlement - A declaration that the Defendant is entitled to continue to hold and use the domain name.
For example, you get notified of a DRS incoming. You immediately send a letter before action giving the Complainant 14 days to withdraw the DRS or you will ask a Court to make those (or similar declarations) and that you will ask the Court for costs involved. After 14 days, file the Court stuff, and send Nominet a copy - the DRS will be suspended and things will flow through the Courts. You can even ask the Court for the Complainant to put up surety of costs.
I have checked this, and checked it, and checked it again.
They can feck right off if they think I'm ever going down the DRS path again, I'm off directly to Court. Maybe I'm a bit biased after recent events, but I now see the limitations of going down the DRS route when there is no possibility of cross examination (for either side) or the judge to ask questions why you did what you did and really drill down. Just for the record, I couldn't have done this in mine because the Respondent didn't exist, the Judge would have asked who do you want me to make a declaration against? So it's not sour grapes, it wouldn't have helped me. Of course you need to be sure of yourself before going down this route because if you lose then the costs are going to be great.
Maybe DRS complainants would think twice if they were going to get hit with costs, well this is the way to do it. I'm not telling anyone to do this, just that it can be done in principle.
As ever, take your own legal advice.
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Hook
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I posted this a while ago... however, once you've done DRS - the courts will not overturn that decision.
So this is the trap I never understood about Michael's case at the High Court with Emirates. I never really looked into it in all fairness just, I've only read second hand accounts of it, not the judgement. I think I understand it much more now though. I think the issue is that the Judge won't make a declaration regarding the "abusive registration" statement, that's not a term in law, it's a Nominet definition and the Judge can really issue declarations to Judicial definitions
I think, that is why he said he couldn't rule on the Emirates dispute. I think, and there are people on this forum much more knowledgeable than me on this issue - that had Michael asked a different question in Court - maybe those above, especially before the DRS decision - he would most likely have won that.
Errrrhm, from the research I have done, it's messy and the DRS Policy does not seem to state where the Courts have to be located - only that they have to be of competent jurisdiction.
"If legal proceedings relating to a Domain Name are issued in a court of competent jurisdiction before or during the course of proceedings under the DRS and are brought to our attention, we will suspend the proceedings, pending the outcome of the legal proceedings."
It does say this
"...state that the Complainant will submit to the exclusive jurisdiction of the English courts with respect to any legal proceedings seeking to reverse the effect of a Decision requiring the suspension, cancellation, transfer or other amendment to a Domain Name registration, and that the Complainant agrees that any such legal proceedings will be governed by English law;"
But those are different things, I think they would apply to a complainant trying to do this overseas (as they may say you are asking for a transfer), but as a Respondent you aren't asking a Court to do any of that.
In all honesty, it's difficult and I'd be guessing at this point.
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I can't see how you realistically get a couple of thousand £ back from anyone out of the country. I'm in Portugal.... if one of you guys wins a case against me and I owe you something and I don't feel like paying it... what can ya do? Even if my nom acc gets any restrictions, I'll use a new one.
Hook
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Unlikely you'd get awarded damages, just an expensive way to get the domain transferred.
From what I researched, if there was a genuine concern that one side couldn't pay, you can apply to the court for surety to be placed upfront. Assuming the Judge agrees. If they don't pay it, they won't get to progress to a decision. To get to that point, maybe £5k you'd have to spend.
How much is the average cost on a Solicitor to defend a DRS these days? £2-3k?
Plus once you've done it in Court once, the costs drop going forward if you ever have to do it against others in the future because the first stages are the probably the same no matter who the complainant is or what they are asking for. Where as a Nominet DRS, you first reply in your only input and needs to be shaped to the complaint in front of them.
I'd be amazed if as a winner you got any damages, you'd be lucky to get 70% of your costs back in all honesty. But, you'd have to weigh that up against the money saved by everyone that looks at that 14 day letter before action and goes - hell no, I'm out of here.
It doesn't need to be 14 days either from what I know, there is some official wording but it essentially means that you need to give them reasonable time to respond so long as conditions allow - if you only have 5 days to respond to Nominet before it goes to a decision, then sort of by those rules you can set a 5 day letter before action.
Thanks. Found applicable rules. Its possible to argue jurisdiction.
astutiumRob
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Depends on whether the specifics are covered by one of the standard PAP Protocols as to what the minimum notice time can be for requiring a response before being able to escalate to court.
But no, you can't have a 5 day LBA - It's never less than 7 and certain counterparty types AFAICR require 30.
Good find — yes, it seems to confirm what I'd been able to research. Since the "Abusive Registration" tag exists solely within the Nominet process, the Judge can't engage with that framing either way. Had they sought a different type of declaration — like the ones above — I think the Judge might have been open to it, even more so if they'd done so before the DRS reached a decision. I don't have much love for anyone involved in that case, but I wouldn't criticise them for it. Everything I think I know is built on lessons from what they went through.
Seeking that declaration before a decision is handed down stops the process from reaching a point the Judge can't unwind.
I think the key is what someone would ask a Judge to declare, and I've given a very rough idea above but I'd want a lawyer going over it and coming up with better version. What you don't want to do is to go in too narrow and the Judge declares something so narrow it doesn't cover what the Complainant is alleging, Nominet may just ignore it later.
Assuming you go the declaration spot on, would Nominet dare to restart the DRS after such a finding? I'd be amazed if they did, but that's something they'd have to decide. Would be a really bad look for them to go against a substantive High Court Declaration.
I'd push back on that, you can bypass LBA's altogether if the situation demands it, you could even go Ex-Parte for example. If in exception circumstances it's 48 hours, then that's fine - it really plays out when recovering costs. If you give 5 days when there was no need, you would probably not be able to recover costs incurred early on, but the claim would still continue on a 5 day LBA until a Judge gave their view.