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DNDR Trigger Questions

Domain Name Disputes Resolution - Trigger Questions

1 . Do we need an alternative dispute resolution procedure (ie an alternative to the Courts) for domain names ending in .nz? Why/Why not? Is there a problem in NZ? How many problems are there involving disputes between trade mark owners and domain name registrants? How could we find out? (Poll the trade mark attorneys?)

2. If we do, is there any need for a specialised service as opposed to the general dispute resolution agencies which exist such as the LEADR (Lawyers Engaged in Alternative Dispute Resolution), Mediators and Arbitrators Institute etc? Why/Why not?

3. If a specialised service is required or advantageous, what should it look like? You may like to check what is being done in other jurisdictions or domain name spaces eg:

4. Should any system be compulsory (ie mandated in a contract entered into by the registrant when applying for or renewing a .nz name)?

5. Should the system be adjudicative (ie someone (an arbitrator) imposes their decision after inviting submissions from the holder and the claimant) or alternatively should the process be a mediated one with a mediator facilitating rather than imposing a decision? Are there any other options? .uk has had a mediation type system for several years and is looking at superimposing an arbitration level.

6. Should there be any cost involved for either party in bringing or defending a claim or should this be a cost of the overall DNS (in other words paid for by all .nz domain name holders as part of their domain name fee)? How should the person who will "hear" the dispute be appointed? Should there always be more than one person appointed? How many people? If there is some flexibility in number, how will the number be settled?

7. What types of disputes should such a service handle? Should claims be confined to registered trade mark holders or should common law and other statutory rights holders be allowed to claim (eg for passing off and breach of the Fair Trading Act 1986)? Should the service be extended even further to cover disputes between domain name holders and registrars/ISPs/the registry in relation to domain name services? Is there more of a need for an on-line resolution service for the disputes between rival claimants, both with legitimate rights, perhaps even both with trade mark registrations the "Olympic Fisheries vs Olympic Taxis" problem)?

8. Is such a service appropriately run by ISOCNZ as the ccTLD manager for .nz? If not, who should have this responsibility taking into account that it is ISOCNZ's responsibility as the delegatee of .nz to manage the space for the good of the community? If ISOCNZ is to have the responsibility should it run it itself or contract it out?

9. What sort of qualifications/experience should arbitrators/mediators have? How should they be appointed to the pool of available people? Who appoints them? Are they employed by ISOCNZ or whatever agency runs the service or are they contracted as and when needed from the pool?

10. Would there be a right of appeal to another alternative dispute body or to the Courts? How is an appellate body to be constituted etc? How are the above questions 1-9 (as relevant) answered in respect of that appellate body?

11. What remedies can be awarded to a successful claimant? What about costs awards against the unsuccessful party, or against a vexatious claimant, or one who is found to have somehow abused the process or acted oppressively (eg reverse domain name hijacking if this is considered an abuse)?

12. Should arbitrations/mediations be confidential? Should any decision/settlement be confidential? If not, should decisions be reported and therefore be available as some form of precedent?

13. What form of quality control should be maintained in respect of decisions and/or decision makers, if any?

14. What are the consequences, if any, of the fact that some complainants will come from outside New Zealand, as will some registrants?

Rick Shera, Ll.B, MComLaw
+64 21 612 713

© 2001 The Internet Society of New Zealand
Last updated 9 May 2001

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