‘First come first served’ up for review at InternetNZ

Being first may no longer guarantee a domain under proposed new InternetNZ rules

InternetNZ is reviewing its long held “first come first served” policy with regard to domain name registrations.

After periodic discussion stretching back several years, InternetNZ has released a draft of its proposed disputes resolution policy.

An organisation which thinks it has more right to a domain name than the party who has claimed it will be able to register a complaint. The two parties then enter a period of informal mediation, with no charges payable. If the matter cannot be resolved then it will go to a formal hearing led by an “expert”, for a fee of $1,800. This covers simultaneous decisions on up to five names.

Parties disputing domain-name rights have always been free to negotiate between themselves and to have recourse to the courts, and there have been a number of legal decions in this regard. But the proposed procedure is the first step into the fray by InternetNZ itself and its operational arm, the Domain Name Commissioner.

A working group set up by InternetNZ decided provisionally earlier this year that some formal procedure was preferable to continuing with the status quo, and that a procedure modelled on that of UK domain-name registry Nominet was preferred to the other option, reliance on the external judgement of the Wolrd Intellectual Propoerty Organisation (WIPO).

WIPO became involved in a famous New Zealand case, that of NZ Trade and Enterprise’s claim to newzealand.com over a prior registrant. NZTE lost the case and chose to buy the name from the owner for NZ$1 million (Computerworld, December 23, 2002).

Nominet statistics, according to domain-name commissioner Debbie Monaghan, show about 60% of complaints are resolved at the informal mediation stage.

According to the proposed policy, a complainant has to be able to demonstrate that it “has rights in respect of a name or mark which is identical or similar to the domain name in question”, and that “the domain name, in the hands of the respondent, is an unfair registration”.

There is a lengthy list of reasons why a registration can be proclaimed to be “unfair”, including a demonstrated intention to block the registration of the name by the complainant; to disrupt the complainant’s business; or to deceive the public into believing that a website or other service set up under that domain name belongs to the complainant, or evidence that the repsondent has registered the name solely “for the purposes of selling, renting or otherwise transferring [it] to the complainant, or to a competitor of the complainant, for valuable consideration”.

A prior record of such domain-name squatting by the respondent will weigh heavily towards a finding in the complainant’s favour.

The commissioner has put out a draft policy for public comment. The comment period will end on January 5. A period of internal discussion will follow and Monaghan says the final policy could be in place between May and June 2006.

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