'Three strikes and you're out' for domain name hijackers

Companies that abuse their trademark rights in attempts to grab .uk domain names -- a practice known as reverse hijacking -- will be subject to a 'three strikes and you're out' rule from this autumn.

The new rules were published last week in a discussion paper by Nominet, the company that manages the .uk domain. Speaking at a conference in London on Wednesday, Nominet solicitor Emily Taylor said the rules are designed to help protect individuals from powerful companies that throw their weight around, as well as to speed the process for companies and famous personalities to recover domain names where they have a legitimate right to them.

"There will be a sanction for repeated abuse," said Taylor. "Three strikes and you're out -- we will no longer accept complaints from you."

The measures are part of an overhaul of the dispute resolution system for the .uk domain names designed to give Nominet new powers over name disputes, including the power to transfer a domain name in the event of a successful claim against a cybersquatter.

Cybersquatting has become an increasingly common problem in recent years as people have used the domain name system to register names of famous personalities or companies, often with the object of later selling the domain name at a profit.

Under the current agreement, Nominet only has the power to suspend or cancel a domain name that is found to be registered in bad faith. Taylor said the changes were drawn up to make the process of resolving domain name disputes easier and cheaper. "Over the last three years we have seen cybersquatting come increasingly into focus," she said. "It is an important issue, and if we don't address it, then it threatens the principles of first come, first served registrations." Referring to the Universal Dispute Resolution Procedure (UDRP) used for the three popular top level domains (.com. .net and .org), Taylor added: "We think we should come forward with a process rather than have one imposed on us."

Unlike the UDRP system, which is administered by the World Intellectual Property Organisation (WIPO) and is an administrative procedure, Nominet intends to adopt a mediation model. "Our focus has always been mediation, and we have always offered it free of charge," said Taylor. "We find it is particularly successful for smaller players -- it works effectively in David and Goliath scenarios."

However, the proposed system has not won universal approval. Among the critics is Christopher Gibson, former head of the e-commerce section in WIPO's office of legal affairs, and now a partner with city law firm, Steptoe & Johnsons Rakinsons.

"Nominet is taking on an onerous burden," said Gibson, also noting that the Nominet procedure does not specify that adjudicators can reference the laws of any country they deem relevant. "WIPO's process says panellists in a dispute can reference any laws they deem applicable -- Nominet's lack of clarity here may cause confusion".

Tony Willoughby, a senior partner with law firm Willoughby and Partners, who adjudicates in both Nominet and WIPO cases, said he shared the concerns at the vague definitions of jurisdiction in the Nominet policy.

However, he welcomed the changes to stop reverse-hijacking, under which Nominet will no longer consider claims from people or companies who have been found to have abused the system. "This three strikes and you're out system sounds alarming, but it is not three attempts and you fail -- there have to be three findings that you have abused the policy first," he said.

Nominet dealt with its first domain name dispute in 1997 and has managed over 1,200 cases since then.

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