What's in a Domain Name?

INTRODUCTION AND BACKGROUND

During April 2005 the Department of Communications at long last published a notice inviting comment on proposed alternative dispute resolution regulations drafted in terms of the Electronic Communications and Transactions Act No 25 of 2002. These regulations are to be known as the Alternative Dispute Resolution regulations and will regulate disputes relating to domain names in the.za namespace..

A domain name is simply an address on the Internet where anyone in the world can go to and which directs an internet user to a specific website. A business normally registers a domain name and operates a website under this domain name so that customers can find it and it can attract more business and greater publicity. A website is used for marketing, attracting and conducting business.

Domain names are registered on a principle of “first come first served” basis without requiring proof from the registrant of its rights to a particular domain name. It is this very principle which causes all the problems. It was not long before unscrupulous individuals realised that there was money to be made here and started registering domain names in which they had no legitimate right or interest. These so-called “cyber-squatters” would then hold the legitimate owner of the brand or trademark to ransom and invariably try to extort an exorbitant price for the transfer of the domain name.

In order to combat this problem the Internet Corporation of Assigned Names and Numbers (ICANN), the international body responsible for domain names, introduced a dispute resolution policy. The ICANN dispute resolution procedure applies to all types of domain names except the .za namespace. The only recourse a legitimate owner of a trademark or brand name had in South Africa was to protect its trademark or brand name through the courts. This recourse was invariably lengthy, costly and not always the most appropriate remedy. It is against this background that the regulations have been published.

THE PROPOSED ALTERNATIVE DISPUTE RESOLUTION REGULATIONS

In an effort to simplify matters and to resolve disputes more effectively and less costly, the DOC has advertised the proposed alternative dispute resolution regulations.

These regulations are divided into 4 chapters consisting of 39 regulations.

Chapter 1 deals with the purpose and scope of the regulations and provides a useful list of definitions.

Chapter 2 deals with the alternative dispute resolution rules.

Chapter 3 deals with the procedure to be adopted during the alternative dispute resolution process.

Chapter 4 deals with the accreditation of alternative dispute resolution providers.

The rules contained in Chapter 2 of the regulations provide that a registrant (an applicant for or holder of a domain name) must submit to proceedings under these rules if a complainant asserts, in accordance with the procedure that:

a)	The complainant has rights in respect of a name or mark which is identical or similar to the domain name and in the hands of the registrant the domain name is an abusive registration; or
b)	the domain name, in the hands of the registrant, is an offensive registration.

The regulations provide a non-exhaustive list of factors that may be evidence that the domain name is an abusive registration. Similarly the regulations provide a non-exhaustive list of factors that may be evidence that the domain name is not an abusive registration.

The complainant must select a domain name dispute resolution service provider approved by the authority and published on the authority's website. An adjudicator is then appointed by the provider and the complainant must pay a fee of R10 000.00 before the dispute will be adjudicated.

The adjudicator’s decisions are limited to:

1)	in the case of abusive registrations: - the refusal of the dispute; or - the transfer of the disputed domain name to the complainant.
2)	in the case of offensive registrations: - the refusal of the dispute; or - the deletion and prohibition of the domain name from the future registration in that particular disputed domain.
3)	refusal of the dispute as the dispute constitutes reverse domain name hijacking.

The adjudicator must consider and be guided by previous decisions made in terms of these regulations. This is noteworthy as it reinforces the principle of precedent setting and should provide more legal certainty in the resolution of such disputes. No oral evidence may be given and the dispute is to be settled on the papers submitted.

If all the time periods set out in these regulations are adhered to by all the parties, including the adjudicator, the adjudicator's decision can be expected within 41 working days of the dispute having been lodged. This is good news. In the normal course this will ensure that a decision is received long before a judgement would have been obtained had the matter been argued before a court of law.

One of the objectives of the Electronic Transactions and Communications Act is to promote and facilitate the use of electronic communications and transactions. Sadly the proposed regulations do not achieve or support this objective since, for some obscure reason a dispute must be submitted in both electronic and paper format (in triplicate).This in my view defeats the object of the Act and places an unnecessary burden on the parties.

CONCLUSION

Any Government initiative which leads to disputes being resolved “simpler, better and faster” (if I may borrow a Standard phrase), must be supported. Only time will tell whether these objectives have been achieved.

Written by: Nigel Petzer.