New .nz Dispute Resolution Policy Follows British Model
The registry responsible for the .nz (New Zealand) domain name extension instituted a new dispute resolution policy on June 1, 2006 applicable to .nz domains. The Dispute Resolution Service Policy (“DRSP”), established with assistance from the .uk registry, is strikingly similar to the dispute resolution policy that governs .uk domains. Both policies are largely based on the well-known Uniform Domain Name Dispute Resolution Policy (“UDRP”), which governs disputes over domains in the .com, .net and .org extensions, among others.
To challenge a domain name under the DRSP, a complainant must prove that it “has Rights in respect of a name or mark which is identical or similar to the Domain Name;” and “The Domain Name, in the hands of the Respondent, is an Unfair Registration.” The evidence proffered by the complainant must “prove to the Expert that both elements are present on the balance of probabilities.” The DRSP defines an “Unfair Registration” as a domain name that either:
- was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant’s Rights; OR
- has been, or is likely to be, used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights.
Like the .uk dispute resolution policy, the DRSP provides a non-exhaustive list of factors for consideration in determining whether a domain name is the subject of Unfair Registration. Both policies have expanded on UDRP ¶ 4(b), which lists possible circumstances to establish bad faith registration and use of a domain name. Such circumstances include registering a domain name for the primary purpose of selling for a profit and intentionally using a domain name to attract Internet users by creating a likelihood of confusion as to source. Under the DRSP, evidence of Unfair Registration includes likelihood of confusion (5.1.2) and knowingly providing false contact information (5.1.4), factors not included in the UDRP.
Another provision borrowed from the .uk dispute resolution policy is a required period of informal mediation. If a dispute defaults because the registrant fails to file a response, the matter will proceed directly to the Expert to decide the case on the merits. On the other hand, if the registrant of the disputed domain name files a response to the complaint, the Office of the Domain Name Commissioner (“DNC”) will appoint a Mediator selected from the DNC’s list of Mediators at no cost to either party. Negotiations conducted pursuant to the informal mediation are intended to be private and confidential. If the parties are unable to arrive at a mutually acceptable resolution after 10 days of mediation, the complainant must pay the applicable filing fee, and the DNC will appoint an Expert to decide the dispute under the DRSP.
A final element borrowed from the .uk dispute resolution policy, but unavailable to complainants under the UDRP, is the option of either party to appeal the Expert’s decision. Decisions rendered by the Appeal Panel will not be binding precedent, but will “be of persuasive value to Experts in future decisions.”
Ladas & Parry, LLP’s Digital Brands Practice groups have represented and counseled clients with regard to domain name disputes across the world. Feel free to contact us with any questions or concerns.
