Keeping domain disputes out of court

Plans to introduce an alternative dispute resolution system for internet domain names are approaching a crucial stage and a recommendation to adopt a new process will be considered in a fortnight.

At present, conflicts over addresses in the .nz domain name space that can't be settled end up in the High Court, typically costing the parties tens of thousands of dollars.

A working group that has been canvassing views on the issue is recommending a process based on one in use in the United Kingdom. The recommendation will be considered on May 16 at a meeting of InternetNZ's .nz oversight committee.

Stephen Mascarenhas, legal administrator at Hamilton company DigiPoll, said keeping disputes out of court made sense.

"In domain name disputes there's nothing to be achieved from trying to get damages from the other party or trying to mete out punishment," Mascarenhas said. "The only thing you want is your domain name."

DigiPoll recently used the dispute resolution process of the non-profit Internet Corporation for Assigned Names and Numbers to argue for the right to the Digipoll.com web address, which had been registered by a California man.

DigiPoll paid a US$1500 ($2000) fee for arbitration of the dispute, which was settled in its favour.

Plans to introduce a similar process here are widely supported and have been discussed for years.

Richard Shearer, of New Plymouth-based .nz domain name registrar FreeParking, says the alternative dispute resolution process can't come soon enough.

Shearer said dealing with disputes was a weekly task at FreeParking and, he suspected, at other registrars.

"The registrar currently is having to almost act as a lawyer, a judge and a counsellor, trying to figure out what the dispute might be in the first place," Shearer said. Resolving some disputes was merely a matter of encouraging the parties to come to an agreement.

"In other cases there's very clear trademark or copyright abuse going on, and generally that means the only action you can take is direct to the High Court, because it's an intellectual property issue," he said. "I'm surprised other registrars haven't spoken up more because we definitely see it as an ongoing issue."

FreeParking was one of 17 organisations or individuals to make submissions on the issue this year to InternetNZ, the body responsible for governance of the .nz domain name space.

Five felt no alternative to the courts was necessary and most of the rest supported using the UK's Nominet system.

The other submitters, including the International Trademark Association, backed a variation of the assigned names and numbers corporation's uniform dispute resolution model, used to resolve DigiPoll's case.

The association argued the model was widely used elsewhere, including Australia, and therefore suited its preference for harmonisation of dispute processes between countries.

But Auckland trademark lawyer Kim McLeod, of AJ Park, who has acted for large and small organisations that have sued over domain names, supports the Nominet model.

"The .uk model is a good choice because it is flexible, local, and includes a provision for appeal," McLeod said. It cost the complainant nothing under the Nominet system if the dispute could be resolved by mediation, McLeod said, compared with the "prohibitive" cost of High Court action - $10,000 and more.

The rules for registering a .nz domain name are first-come, first-served, whether the applicant is a New Zealand resident or not. But domain name commissioner Debbie Monahan, who operates under InternetNZ's auspices and has responsibility for the registration process, said disputes were a known issue and an alternative to the courts for resolving them was needed.

"I'd be in agreement with what the working group's paper recommends," Monahan said.

The virtue of the Nominet model, she said, was that it could be adapted for New Zealand. "We want something that reflects the open nature of our registry while at the same time balancing the different rights that the different parties might have."

That balancing act might involve arbitrating between someone whose name, and someone else whose trademark were the same, and each felt entitled to use it in a domain name.

The Nominet model has three levels: informal mediation, an expert panel, and an appeal.

Monahan said the introduction of the system would not add to the cost of registering a .nz domain name.

Discussion about an alternative dispute process has been going on for about five years.

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