Glossary of Domain Name Disputes
The domain name dispute resolution system was supposed to be user-friendly, but this goal has not always been achieved. One of the main barriers to effective access has been the jargon that has grown up around the system. To successfully negotiate the system you must need to know the differences between registrants, registrars and registries; you must not confuse your UDRP with your ACPA; and you’ll need to be able to choose between NAF and WIPO should it become necessary.
This is a key concept under the Nominet Dispute Resolution Policy; there is no concept of an abusive registration under the UDRP (although see the entry on bad faith). An abusive registration is one which was registered or acquired or has subsequently been used “in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights”.
See the entry on the Anti-Cybersquatting Protection Act.
ADR stands for alternative dispute resolution. In the domain name dispute context, arbitration proceedings are sometimes called ADR proceedings, especially in EURid documentation.
Alternative dispute resolution:
See the entry on ADR.
Anti-Cybersquatting Protection Act:
A US law enacted on 29 November 1999. It amended the Lanham Act - the centrepiece of US trade mark legislation - and forms section 43d. The ACPA may - in certain circumstances - be applied to your case by the US courts, even if you're not a citizen of or based in the US.
Domain name arbitration is the contractually-based system of dispute resolution used to determine disputes about the proper ownership of domain names. It is distinct from traditional arbitration: a sophisticated system of private dispute resolution proceedings commonly used to determine international contractual disputes.
Under the UDRP a successful complainant must prove that the domain name was registered or is being used in bad faith. The concept of bad faith is not defined in the UDRP; however four examples of circumstances which are evidence of bad faith are given, and I have (crudely) summarised these below. First, circumstances indicating that the respondent intended to sell the domain name to the complainant are evidence of bad faith. Second, so-called “blocking” registrations are evident of bad faith, providing they are part of a pattern of such registrations. Third, evidence of bad faith may be found in registrations intended to disrupt a competitor’s business. Finally, circumstances indicating the commercial use of a domain name which creates a likelihood of confusion between the domain name and the complainant’s mark are evidence of bad faith. The list is non-exhaustive.
One of the remedies permitted under the UDRP, Nominet Policy, and the .eu Regulation, but rarely employed. The usual remedy is transfer. Cancellation is also known as revocation.
This stands for country code top level domain. Examples of ccTLDs include .us, .uk and .de.
The person making a complaint via a domain name arbitration service about a domain name registration (analogous to a plaintiff or claimant in litigation).
The document setting out the complainant’s case. There are detailed rules about what must go into a complaint, and the length of complaints is strictly limited under some regimes. Typically, a complaint would include references to the provisions of the relevant policy document, a description of the factual circumstances of the case, arguments as to why the case should be found in the complaint’s favour, and references to previous decisions which support the arguments.
The practice of improperly registering or acquiring domain names in which others have rights.
The domain name dispute equivalent of a court judgment. There is no formal system of precedent in domain name arbitration. However, the arbitration bodies are loath to allow a diversity of interpretations of their rules, and in practice panelists will not usually depart from well-reasoned earlier decisions (or at least that they know about).
Domain name holder:
Another name for a registrant.
The body administering the .eu domain name. The EURid dispute resolution service is provided by the Prague-based Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic.
The Nominet term for panelists - the “judges” of the domain name dispute resolution system. Most experts are practising intellectual property lawyers.
Federal Trademark Dilution Act:
US legislation providing a powerful remedy for the owners of famous trade marks. The FTDA was enacted in 1996. It was the first statutory amendment of the US Lanham Act to address the challenges presented by the internet. Its main effect was to expand the protection available to famous marks by prohibiting dilution.
See the entry on the Federal Trademark Dilution Act.
This stands for generic top level domain. Examples of gTLDs include .com, .net and .org. Compare ccTLDs.
The Internet Corporation for Assigned Names and Numbers (ICANN) administers the domain name system. It has promulgated no less than 10 different policies relating to dispute resolution. The most important policy is the Uniform Domain Name Dispute Resolution Policy (the UDRP). The UDRP must be read in conjunction with the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules). ICANN's other dispute resolution policies relate, for instance, to specific kinds of domain name with particular registration requirements (e.g. .pro or .biz), the .info sunrise period, and disputes with registrars over domain name transfers.
See the entry on Internationalised Domain Names.
Internationalised Domain Names:
A domain name potentially containing non-ASCII characters, for example a domain name consisting of Arabic or Hebrew characters.
To help defeat a complaint made under the URDP, a Respondent should argue that he or she has legitimate interests in the domain name in dispute. A non-exhaustive list of ways of demonstrating a legitimate interest is set out in the UDRP. First, pre-dispute use of (or preparations for the use of) the domain name or a name corresponding to the domain name “in connection with a bona fide offering of goods or services” may constitute a legitimate interest. Second, you or your business being commonly known by the domain name may constitute a legitimate interest. Third, a legitimate non-commercial or fair use of the domain name may constitute a legitimate interest, providing that use does not misleadingly divert consumers of the complainant or tarnish the trade mark at issue.
The National Arbitration Forum is a major forum for the resolution of domain name disputes. NAF focuses upon North American domain name disputes. Arbitration proceedings using NAF are governed by the UDRP, the Rules and NAF's Supplemental Rules. NAF also provides non-UDRP dispute resolution services, for example for disputes about .us and .kids.us domain names.
Mediation is a form of alternative dispute resolution where the parties to a dispute try to agree a settlement to the dispute with the help of a professional facilitator. The Nominet Dispute Resolutions Service provides a free mediation service.
This concept is used in the UDRP and other policies to refer to the jurisdictions in which formal court proceedings should be conducted in the event that domain name arbitration proceedings do not produce a satisfactory outcome. Under the UDRP it means either the courts of the country in which the relevant registrar is based or the courts in the country which the registrant claims to be based in its WHOIS entry.
The Nominet dispute resolution service deals with disputes involving .uk domain names (including .net.uk, .ltd.uk, .plc.uk, .co.uk, .org.uk and .me.uk). Nominet does not use the UDRP; instead, disputes are determined under Nominet's own Policy and Procedure.
One or three panelists usually constitute the panel.
The judges of the domain name dispute resolution system. Many are practising intellectual property lawyers; many NAF panelists are retired US judges.
Legalese meaning a person who is involved in legal proceedings as a litigant. In the context of domain name arbitration proceedings, that means involvement as either a complainant or a respondent.
The English-law tort of passing off has been inherited many other common law jurisdictions. It is sometimes referred to (with some carelessness) as "unregistered trade mark infringement". The registration and use of a domain name can constitute passing off.
The UDRP and the Nominet Policy are the most important documents in UDRP and Nominet arbitrations respectively. The equivalent rules in .eu arbitrations are contained in the Regulation.
The Nominet Procedure contains the detailed rules governing the conduct of Nominet domain name arbitrations – for example, time limits for action.
The company or organisation that administers a domain name dispute resolution service. Some systems of domain name dispute resolution, such as the UDRP system, have more than one provider; others, such as the .eu system, have only one provider.
A company or organisation that is accredited by a registry to register domain names.
The person that “owns” (i.e. has the contractual right to use) the domain name. The registrant of a domain name can be found using a WHOIS service.
The agreement entered into between a registrar and a registrant upon the registration or acquisition of a domain name. The registration agreement stipulates the manner of dispute resolution, and therefore underpins the whole domain name dispute resolution system.
The organisation administering the domain name extension in question. For example, Nominet it the .uk registry and EURid is the .eu registry. Sometimes called the registration authority.
In the context of .eu domains, this means Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the .eu top level domain and the principles governing registration.
The document in Nominet proceedings containing the complainant’s arguments in response to the respondent’s arguments in the response. It should not in general contain new arguments unrelated to points raised in the response. There is no equivalent in the UDRP or .eu procedures.
The document containing the respondent’s arguments in response to the complaint.
A person responding to a formal complaint about his or her domain name registration (analogous to a defendant in legal proceedings).
Reverse domain name hijacking:
The improper use of domain name arbitration proceedings to dispossess a registrant of his or her domain name.
In Nominet proceedings, a complainant must show that he or she has rights in respect of a name or mark which is identical or similar to the domain name at issue. The Nominet Policy provides that rights “includes, but is not limited to, rights enforceable under English law. However, a complainant will be unable to rely on rights in a name or term which is wholly descriptive of the complainant's business”. The most important rights are registered trade marks and, in English law, the right to bring proceedings for the tort of passing off.
The Rules for UDRP supplement the UDRP itself. The Czech Arbitration Court also has a set of rules for .eu disputes.
Under the UDRP, both NAF and the WIPO Mediation and Arbitration Center issue their own supplemental rules, which supplement the UDRP and the Rules for UDRP, and include for example provisions about the costs of arbitration. The Czech Arbitration Court also has a set of supplemental rules for .eu disputes.
Trade Marks Act 1994:
The centrepiece of the UK trade mark law regime, the 1994 Act has been frequently amended, usually to reflect developments in European law.
The most important remedy in domain name arbitration proceedings. If the panel determines that a complaint has been made out, the domain name will usually be transferred from the respondent to the complainant.
The practice of improperly registering domain names which are very similar to names in which others have rights. A form of cybersquatting.
The Uniform Domain Name Dispute Resolution Policy promulgated by ICANN governing most disputes about generic top level domains, and many disputes about country code top level domains. The UDRP must be read in conjunction with the Rules for Uniform Domain Name Dispute Resolution Policy.
Directory service for looking up names and other details of domain name registrants.
The World Intellectual Property Organization (WIPO) is an agency of the United Nations. WIPO's Arbitration and Mediation Center was the first dispute resolution service accredited by ICANN. Arbitration proceedings using WIPO are governed by the UDRP, the Rules and WIPO's Supplemental Rules. It is - along with NAF - one of the "big two" providers of dispute resolution services under the UDRP.
This glossary is intended to help you get to grips with the jargon; if you need more information, please visit the Internet Library of Cybersquatting and Domain Name Disputes at http://www.sequitur-ips.com/domain-name-disputes/library.html.
Hagit Ben-Artzi runs Sequitur IPS, which specialises in representing individuals and companies in domain name disputes and domain name arbitration proceedings.
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