27 May 2010
A domain name is mnemonic for the multi-digit number that identifies a server on the internet. It consists of a server name, usually “www”, a top level domain (“TLD”), which may be country specific (“ccTLD”), such as “.uk”, “.fr”, “.de” or “.us”, or generic, like “.com”, “.org” or “.net” (“gTLD”). Between the server name and the TLD lies a second level domain (“SLD”), such as “nipclaw” or “ipit-update”, identifying the source of the information. That SLD is what is generally meant by the domain name.
Domain Name System
The domain name system is managed by a not-for-profit California company called theInternet Corporation for Assigned Names and Numbers (“ICANN”). One of ICANN’s tasks is to accredit companies around the world to register gTLDs and accredit ccTLD registries or network information centres (“NICs”)around the world to administer the ccTLD space.
Nominet (a company limited by guarantee) is the NIC for the UK. It maintains the register of “.uk” domain names and accredits other registrars to register domain names in that space.
Domain names are registered for a limited period. Most gTLD and ccTLD registrars accept applications for registration on a first come first served basis. Those registrars require applicants to warrant that they are entitled to register the name they apply to register but make no enquiries of their own as to whether or not they can actually do so.
Domain Name Disputes
Ever since the internet became an important marketing resource in the mid-1990s, there have been disputes over domain name registrations. Sometimes they have been between companies with the same or similar names in different industries or countries. More often they have been between owners of well-known names or marks and speculators who register the names or marks of such persons as domain names. From the mid-1990s, passing off and trade mark infringement actions have been brought against such speculators not all of which were successful. The costs of those proceedings and uncertainty as to whether such speculation actually amounts to trade mark infringement or passing off in every case law tempted many trade mark owners to pay substantial sums for the ransom of their names and that, of course, encouraged the practice.
Uniform Domain Name Dispute Resolution Policy
A practical alternative to litigation in many cases have been available since 1999. ICANN requires all gTLD registrars to incorporate into their standard registration conditions a provision referring any registration dispute to expert determination under a procedure known as the Uniform Domain Name Dispute Resolution Policy (“UDRP“). Anyone who wishes to challenge a domain name registration may apply to one of a number of dispute resolution organizations approved by ICANN to appoint one or more panellists to determine, in a case where the registration is the same or confusingly similar to the complainant’s trade mark, whether the domain name owner has any rights or interest in the domain name and whether the registration and use have been in bad faith. If the panel finds all those matters proved it may requires the registrar of the disputed name to cancel the registration or transfer it to the complainant. the cost of this procedure is a few hundred US dollars depending on the current tariff of the dispute resolution service provider and the number of domain names in dispute.
Country Code Dispute Resolution Services
Nominet offers a similar but slightly more sophisticated dispute resolution policy for the “.uk” ccTLD. Preliminary mediation is available for the parties free of charge. If that fails the complainant can refer the dispute to an expert appointed in accordance with a procedure known as The Dispute Resolution Policy. This policy is rather more flexible than the UDRP in that it provides for cases where a name was registered fairly but its use has subsequently infringed the complainant’s rights. Other refinements are that an expert can make a finding of reverse hijacking and there is the possibility of an appeal. Other NICs have also adopted dispute resolution procedures for their ccTLD space. Many are modelled on the UDRP but some are adapted to local needs.
A domain name is a valuable asset which can be bought, sold, licensed and even mortgaged. Those transactions often involve complex points of company, contract, private international and tax law. Though the UDRP and Nominet DRS are suitable for most domain name disputes there are still circumstances when it is necessary to resort to litigation. Moreover, the complaints and response forms of Nominet and all UDRP service providers are at least as complex as a statement of case in a trade marks or passing off action. As proceedings are entirely on paper at least the same if not greater degree of care and skill are needed in drafting them.