DIY Domain Name Disputes: Expert Tips
This is a distillation of the wisdom acquired through years of involvement in domain name dispute proceedings. It won’t make a hopeless case winnable, but it might stop you from making a strong case un-winnable. (1) Know your chances Make an assessment of your chances of winning before embarking on a dispute. You will need, at a minimum, to read and understand the rules governing the relevant kind of complaint; learn when complaints are upheld, and when rejected. Unless the case is very clear-cut or you’re a very quick learner, your initial view may lack nuance, but you should at least know whether you have a chance of succeeding or none at all. If you can’t form an initial view, some lawyers will be prepared to look at the papers and consider whether you have a prima facie case without charge. (2) Write first time It is usually worth writing to the other side about a domain dispute before making a complaint. There are two main reasons. First, the cost and aggravation of a domain name dispute can sometimes be avoided by a simple exchange of letters. Second, even if the dispute isn’t resolved by correspondence, the fact that you have tried to resolve the dispute without recourse to arbitration proceedings will create a favourable impression with some panellists. Neither goal is likely to be achieved if the correspondence is disproportionately aggressive or sarcastic: your letters should be lucid, polite and concise. The problem with writing before filing a complaint is that the domain registrant could transfer the domain to another person before you get a chance to file - possibly to a person with better rights in the domain name than the registrant. You should assess this risk carefully before deciding whether to write first. In making this assessment, one important consideration will be the cost of filing a complaint and thereby blocking transfers. In Nominet (.uk) proceedings, it costs nothing to file a complaint and have domain transfers blocked until the dispute is resolved; however in most other kinds of domain name proceedings, the complaint fee is payable upon filing. (3) Know your limits Time limits, that is – and word limits. In domain name disputes both time limits and word limits can be short. It’s important not to contravene either: missing time limits can be fatal to your case, and looks careless at best; exceeding word limits will annoy the panel. Panellists will tell you that they don’t get paid enough to read what they don't have to read, when they don't have to read it. (4) Tell a story The “pleadings” of domain name arbitration proceedings – complaints, responses and (in Nominet proceedings) replies – are never going to make great reading. The formal requirements of these documents make them tedious, even for readers professionally acclimatised to tedium. The easiest way to make the document more interesting is to write it as you would a simple story. Insofar as the document recounts facts, these should usually be in chronological order. You also need to be clear about which person or entity is undertaking which action. This is obvious in the case of natural persons, but can be unclear where you are dealing with legal entities such as companies and partnerships. Even the non-factual, argumentative sections of your pleadings can be organised in the same way as a story, with a clear beginning, middle and end - although the order an argument will be logical rather than chronological. (5) Keep cool Your Complaint or Response should be dispassionate and measured - and give the appearance of objectivity. Remember who is likely to be making the decision, and where: a middle-aged lawyer in an air-conditioned office. Although you need the sympathy of that lawyer, you it's best not to be seen to be asking for it. (6) Fit the facts to the rules, the rules to the facts Rarely, if ever, will the rules fit the facts like a glove. More commonly, you’ll find that the facts have an extra finger, or the glove is too tight, or too capacious. Your handling of the tensions between the facts and the rules will be a key factor in the success or failure of your argument. By careful presentation of both the facts and the law, it is possible to make it look like the latter was made to fit the former. In this way, weaker arguments can be made stronger, and stronger arguments can be made compelling. (7) Weight your evidence One kilo of evidence is too much; one gram too little. To reiterate: panellists will tell you that they don’t get paid enough to spend their weekends reviewing your appendices. However, a certain quantity of documentary support is necessary in all cases, to demonstrate the prior dealings of the parties, the use of the domain name in dispute, the rights of the parties, and so on. As a rule of thumb, you should not include more than one file of evidence and, if possible, that file should be slim enough to allow the panellist to review its contents in less than 15 minutes. (Of course, you may need to break this rule in some cases.) (8) Find a precedent or two The major dispute resolution services have now built up a substantial body of case law. Few if any panellists read every decision; most read only a small percentage of the decisions issued. Panellists don’t want to make decisions that are inconsistent with previous case law: they don’t want to invite the criticism of their colleagues or academic commentators; nor do they want to have their decisions overturned on appeal. You can help the panellist avoid these ignominies by pointing him or her in the direction of a decision or two which supports your interpretation of the rules. Don’t however go overboard with the authorities. Generally, you should cite only one or two authorities in each case. However, in some circumstances - for example, where there is a well-known case, or your opponent has cited a case, which contradicts your “case theory” - then you may need additional authorities to establish your case. Sometimes it may be necessary to cite a court judgment; only do so if it really is necessary. (9) Be a pedant Panellists are usually lawyers; lawyers are professional pedants. You don’t want the condescension of the panellist, so try to avoid typos, inconsistent usage, and errors of grammar and spelling. Once your document is prepared, proof read it; then have a friend proof read it; then proof read it again. (10) Read, re-read and re-re-read the rules Read the applicable rules before drafting your complaint (or response); and during; and after. Check that your document meets all the formal requirements. (11) Use your service provider You’re the customer and, although you cannot be always right when the service is dispute resolution, you can be a little bit always right. They won’t give you much in the way of substantive advice, but most will help clear up procedural issues. (12) Stay relevant Irrelevant material is most unwelcome to the panellist. You may think you can make your opponent look bad by telling the panel how he or she stole your money, or killed your cat. Resist that urge: it will only make you look bad. Ensure all of your arguments and evidence are directed to the rules upon which the panel must make its decision. Hagit Ben-Artzi runs Sequitur IPS (http://www.sequitur-ips.com), which represents both complainants and respondents in domain name dispute proceedings. |
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