 |
Factors indicating unfair domain registration |
An extract of policy document factors used to determine an unfair registration is listed below along with our comments on how these apply to domain name traders. This list is not conclusive nor exhaustive!
5.1. A non-exhaustive list of factors which may be evidence that the Domain Name is an Unfair Registration is set out in paragraphs 5.1.1 – 5.1.5:
5.1.1. Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily:
(a) for the purposes 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 costs directly associated with acquiring or using the Domain Name
A domain name trader should not approach or try to sell a domain to any company or entity that may have rights in the name, or to any of their competitors. Listing your domain name for sale on a public website or forum that is open to bids from anybody should be fine since you are not directly targetting one particular company or their competitors.
(b) as a blocking registration against a name or mark in which the Complainant has Rights
This should be obvious. Don't abuse another company's rights. Stick to generic words where possible.
(c) for the purpose of unfairly disrupting the business of the Complainant
5.1.2. Circumstances demonstrating that the Respondent is using the Domain Name in a way which is likely to confuse, mislead or deceive people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant
This sounds like common sense but actual judgements are likely to be subjective in nature. Scam and phising websites should be easily caught but it's less obvious about whether some parked domains could also be caught. Though parked domains are clearly not indended to pass off as someone else's website, some of the auto-generated links that appear can give the appearance of an association with a particular company. In our opinion it should be possible to defend such cases on the grounds that the content of the parked domain is computer generated by a third party, easily distinguishable as a parked domain, and any suspect links that appear are normally the result of user searches.
5.1.3. The Complainant can demonstrate that the Respondent is engaged in a pattern of registrations where the Respondent is the registrant of domain names (under .nz or otherwise) which correspond to well known names or trade marks in which the Respondent has no apparent rights, and the Domain Name is part of that pattern;
This is a tricky one. Some domain name traders register hundreds or even thousands of domain names and this on its own does not imply an abusive pattern of registrations. The key words appear to be well known names or trade marks. Once again it's best to steer clear of possible trademark infringements and stick to generic names.
5.1.4. The Complainant can demonstrate that the Respondent has knowingly given false contact details to a Registrar and/or to the DNC
Though it might be tempting to use false registration details in order to protect your identity or to remove the association between multiple domain name registrations, doing so could potentially mean the loss of your entire domain name portfolio. Use a P.O. Box if you don't want to reveal your residential address.
5.1.5. The Domain Name was registered arising out of a relationship between the Complainant and the Respondent, and the circumstances indicate that it was intended by both the Complainant and the Respondent that the Complainant would be entered in the Register as the Registrant of the Domain Name
This is a completely fair condition in our opinion, and unlikely to affect domain traders. Rogue website developers may be caught out but documentary evidence is likely to be required.
5.2. Failure on the Respondent's part to use the Domain Name for the purposes of e-mail or a web-site is not in itself evidence that the Domain Name is an Unfair Registration.
This is a very important statement. There is no requirement for domain name holders and speculators to use the domain names that they've registered. This is of course completely fair - it's common practice for companies to make defensive registrations and in any case it would be too difficult to prove whether or not a domain name was registered with the intent to develop or use it.
5.3. There shall be a presumption of Unfair Registration if the Complainant proves that the Respondent has been found to have made an Unfair Registration in three (3) or more Dispute Resolution Service cases in the two (2) years before the Complaint was filed. This presumption can be rebutted (see paragraph 6.3).
Note that only unfair registration needs to have been determined in the 3 DRS cases - even if the DRS cases were successfully defended on the grounds of no rights to the name or mark in dispute.
5.4. In making their decision, the Expert shall not take into account any evidence of acts or omissions amounting to unfair registration or use which occurred more than three (3) years before the date of the Complaint.