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.nz Domain Name Disputes

July 29, 2013 at 4:15 PM

Important New Dispute Resolution Service

Published in Canterbury Tales June 2006

Parties in dispute with regard to .nz domain name registration may now have recourse to a special dispute resolution service, as an alternative to the Courts. A defining feature of the new service is speed. That is vital because the registration of a domain name may have immediate and important consequences to both registrants and third parties.

The .nz domain name space is the responsibility of InternetNZ which is an incorporated society. The day to day oversight of the name space has been delegated to the Domain Name Commissioner (DNC), presently, Debbie Monahan.

As from 1 June 2006, the DNC is administering a new dispute resolution service (DRS). The terms of registration require domain name registrants to abide by the DRS policy.

The DRS permits a complainant to assert that:

1. the complainant has rights in respect of a name or mark which is identical or similar to the domain name; and

2. the domain name, in the hands of the respondent (registrant), is an unfair registration.

An unfair registration means a domain name which either:

(i) 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

(ii) 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.

Factors which are declared to be possible evidence of unfair registration are where, inter alia, the respondent has registered or otherwise acquired the domain name primarily:

  • for the purpose of selling, renting or otherwise transferring the domain name to the complainant or to a competitor of the complainant, for valuable consideration in excess of the respondent's documented out-of-pocket expense costs directly associated with acquiring or using the domain name;
  • as a blocking registration against a name or mark in which the complainant has rights;
  • for the purpose of unfairly disrupting the business of the complainant.

On the other hand, a respondent is entitled to argue, inter alia, that before being aware of the complaint the respondent has:

a. used or made demonstrable preparations to use the domain name or a domain name which is similar to the domain name in connection with a genuine offering of goods or services;

b. been commonly known by the name or legitimately connected with a mark which is identical or similar to the domain name;

c. made legitimate non-commercial or fair use of the domain name.

Registrants are given fifteen days to respond to complaints and the complainant has five days to reply. Three days thereafter the matter must be referred to mediation by one of an approved panel of mediators. The mediation process is to be completed no less than ten days thereafter and will be conducted by email and telephone. Whilst it is likely that one of the parties will be domiciled in New Zealand, the other party may well be domiciled elsewhere.

The panel of mediators comprises Mark Beech, David Carden, Deborah Clapshaw, Tim Clarke, Nicola Crutchley, Nigel Dunlop, Christine Grice, Kenneth Johnston, Carol Powell and Geoff Sharp.

If mediation does not result in resolution, an immediate referral is made to one of the panel of experts. The expert is required to make a decision within ten days of appointment. The parties then have a right of appeal to a panel of three experts. Once again there is strict timetabling for the filing of responses etc. The panel of experts must deliver their decision within thirty days of the hearing.

The panel of experts includes retired High Court Judges.

The procedures under the DRS are suspended if the DNC is satisfied amongst other things that legal proceedings relating to the dispute have been issued before a New Zealand Court.

The DRS is based on the UK Nominet dispute resolution service. Case law can be gleaned from www.nominet.org.uk/disputes.

For more information about the DRS, got to www.dnc.org.nz.



Category: Mediation