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Answers - Introduction to .uk Domain Disputes
The .uk registry is the world’s fourth largest (after the .com, .org and .de registries). It is administered by Nominet, a not-for-profit company based in Oxford, England. Nominet acts not just as the .uk registry, but also as the .uk dispute resolution service provider.
Nominet does not use the UDRP for dispute resolution, but has instead created a distinctive system inspired by the UDRP. The substantive rules governing .uk disputes are set out in Nominet’s dispute resolution policy document (referred
Nominet does not use the UDRP for dispute resolution, but has instead created a distinctive system inspired by the UDRP. The substantive rules governing .uk disputes are set out in Nominet’s dispute resolution policy document (referred
According to USFDA, a combination product is one composed of any combination of a drug and device; biological product and device; drug and biological product
to below simply as the "Policy") and its dispute resolution procedure document.
Procedural rules
The Nominet dispute resolution procedure is a close relative of the UDRP procedure. However, there are some important differences.
There is a free mediation service built in to the Nominet procedure. The mediation process involves a neutral third party who tries to bring the complainant and respondent to agreement through "shuttle diplomacy". If the parties can resolve their dispute before the mediation pe
Procedural rules
The Nominet dispute resolution procedure is a close relative of the UDRP procedure. However, there are some important differences.
There is a free mediation service built in to the Nominet procedure. The mediation process involves a neutral third party who tries to bring the complainant and respondent to agreement through "shuttle diplomacy". If the parties can resolve their dispute before the mediation pe
; or drug, device, and biological product and fixed dose combination would include two or more combinations of drug.
Examples of combination products may in
Examples of combination products may in
riod comes to a close, Nominet waives its fee.
Another distinctive feature of the Nominet procedure is the possibility of appealing an expert's decision (in Nominet proceedings, panellists are called "experts"). By contrast there is no appeal – other than to a court of law – from a decision under the UDRP or the EURid rules.
A single expert always decides "first instance cases". Should either party appeal the first instance decision, a three member panel will be appointed to decide the appeal. At the t
Another distinctive feature of the Nominet procedure is the possibility of appealing an expert's decision (in Nominet proceedings, panellists are called "experts"). By contrast there is no appeal – other than to a court of law – from a decision under the UDRP or the EURid rules.
A single expert always decides "first instance cases". Should either party appeal the first instance decision, a three member panel will be appointed to decide the appeal. At the t
lude drug-coated devices, drugs packaged with delivery devices in medical kits, and drugs and devices packaged separately but intended to be used together.
me of writing, there have only ever been six appeals.
The Nominet fee is always paid by the complainant. At present, that fee stands at ?750 plus VAT. There is also a fee of ?3000 plus VAT payable by a person invoking the appeal procedure.
The remedies available are cancellation or transfer. Unlike in UK litigation, there are no provisions for the unsuccessful party to pay the successful party’s costs.
Substantive rules
Basic rule is that: "A Respondent must submit to proceedings under the Dispute Re
The Nominet fee is always paid by the complainant. At present, that fee stands at ?750 plus VAT. There is also a fee of ?3000 plus VAT payable by a person invoking the appeal procedure.
The remedies available are cancellation or transfer. Unlike in UK litigation, there are no provisions for the unsuccessful party to pay the successful party’s costs.
Substantive rules
Basic rule is that: "A Respondent must submit to proceedings under the Dispute Re
here is enormous increase in the number of combination products entering the market in the recent years. Combination products have proven advantages but fixe
solution Service if a Complainant asserts to us, according to the Procedure, that: (i) The Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and (ii) The Domain Name, in the hands of the Respondent, is an Abusive Registration." (Paragraph 2(a) of the Policy.)
"Rights" are treated in a similar way to rights under the UDRP: the test is not a difficult one to meet.
The idea of an "Abusive Registration" maps imperfectly on to the concepts of legitimate in
"Rights" are treated in a similar way to rights under the UDRP: the test is not a difficult one to meet.
The idea of an "Abusive Registration" maps imperfectly on to the concepts of legitimate in
d dose combinations are still in the process of convincing regulatory authority on their advantages over the single ingredient formulations.
Combination pro
Combination pro
terest and bad faith under the UDRP.
Rights in a name or mark…
Paragraph 1 of the Nominet Policy provides that: "‘Rights’ includes, but is not limited to, rights enforceable under English law. However, a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant's business."
In practice these rights are often rights arising out of registered UK or Community trade marks.
However, the rights can also be rights in the tort of passing off. This is a comp
Rights in a name or mark…
Paragraph 1 of the Nominet Policy provides that: "‘Rights’ includes, but is not limited to, rights enforceable under English law. However, a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant's business."
In practice these rights are often rights arising out of registered UK or Community trade marks.
However, the rights can also be rights in the tort of passing off. This is a comp
ucts have become life saving products for the pharmaceutical companies who doesn’t have many innovative molecules in their product pipeline and have been inc
ex subject, but most experts will be prepare to accept that a complainant has unregistered trade mark rights which could give rise to an action in passing off where the complainant can show substantial use of a mark or name as a trade mark in the UK. It is probably fair to say that the standard of proof required by Nominet experts of these unregistered rights is significantly lower than that required by the English courts in a passing off action - although in passing off cases the evidence is usually bei
easingly used in the product life cycle management. Even the companies having product patents are trying to extend their product life cycle through the combi
ng used to prove a different point.
Rights can also mean contractual rights – e.g. where one person has contracted with another to transfer the domain, but then refuses to do so.
…which is identical or similar to the domain name
Because most Nominet experts have at least some expertise of trade mark law, the concepts of identity and similarity are heavily conditioned by the comparable concepts in trade mark law.
As regards identity, the domain name extensions are ignored, so that the trade mark MERCE
Rights can also mean contractual rights – e.g. where one person has contracted with another to transfer the domain, but then refuses to do so.
…which is identical or similar to the domain name
Because most Nominet experts have at least some expertise of trade mark law, the concepts of identity and similarity are heavily conditioned by the comparable concepts in trade mark law.
As regards identity, the domain name extensions are ignored, so that the trade mark MERCE
nation products and maximize the revenues. But the companies involved in this practice are overlooking that they are burdening the patients both economically
DES is identical to the domain name mercedes.co.uk. Similar formal differences (e.g. the use of hyphens in a domain name in place of spaces) should not upset a finding of identity.
Similarity is more difficult. In European trade mark law there is a concept which may be called "confusing similarity", and it is this concept which experts are accustomed to apply when comparing one mark to another. The question is: would the public be confused by the use of the marks or names, or associate one with the othe
Similarity is more difficult. In European trade mark law there is a concept which may be called "confusing similarity", and it is this concept which experts are accustomed to apply when comparing one mark to another. The question is: would the public be confused by the use of the marks or names, or associate one with the othe
and physically. They need to rightly judge the benefits of the combination products and they have to even look at the risks involved when combining the produ
. Judging by the detail of experts’ decisions, a similar question is often asked in .uk domain name dispute arbitrations.
Abusive registration
"‘Abusive Registration’ means a Domain Name which either: (i) was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant's Rights; OR (ii) has been used in a manner which took unfair advantage of or was unfairly detrimental to the Com
Abusive registration
"‘Abusive Registration’ means a Domain Name which either: (i) was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant's Rights; OR (ii) has been used in a manner which took unfair advantage of or was unfairly detrimental to the Com
ts. Some of the combination products were well accepted by physicians while others suffered. Companies involved in development of combination products are fi
plainant's Rights." (Paragraph 1 of the Nominet Policy)
Note that the abuse can take place either at the time of registration/acquisition or subsequently. In either case, the key ideas are those of taking "unfair advantage of" or being "unfairly detrimental to" the complainant’s rights.
Proving an allegation of abusive registration
A non-exhaustive list of factors which may be evidence that the domain name is an abusive registration is set out in paragraph 3(a) of the Nominet Policy:
"(i) Circumstanc
Note that the abuse can take place either at the time of registration/acquisition or subsequently. In either case, the key ideas are those of taking "unfair advantage of" or being "unfairly detrimental to" the complainant’s rights.
Proving an allegation of abusive registration
A non-exhaustive list of factors which may be evidence that the domain name is an abusive registration is set out in paragraph 3(a) of the Nominet Policy:
"(i) Circumstanc
ding difficulty in defining their combination products and facing various challenges from selecting a combination to marketing it.
Following aspects would a
Following aspects would a
es 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; (B) as a blocking registration against a name or mark in which the Complainant has Rights; or (C) for the purpose of unfa
dd to the challenges in developing combination products:
Which markets to tap where the combination products can do fairly well?
Which combination prod
Which markets to tap where the combination products can do fairly well?
Which combination prod
rly disrupting the business of the Complainant;
(ii) Circumstances indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant;
(iii) The Complainant can demonstrate that the Respondent is engaged in a pattern of registrations where the Respondent is the registrant of domain names (under .uk or otherwise) which correspond to well known
(ii) Circumstances indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant;
(iii) The Complainant can demonstrate that the Respondent is engaged in a pattern of registrations where the Respondent is the registrant of domain names (under .uk or otherwise) which correspond to well known
cts are meaningful and rational?
Which therapeutic categories to select?
Which Combinations can address unmet needs of the patients?
Do combin
Which therapeutic categories to select?
Which Combinations can address unmet needs of the patients?
Do combin
names or trade marks in which the Respondent has no apparent rights, and the Domain Name is part of that pattern;
(iv) It is independently verified that the Respondent has given false contact details to us; or
(v) The domain name was registered as a result of a relationship between the Complainant and the Respondent, and the Complainant: (A) has been using the domain name registration exclusively; and (B) paid for the registration and/or renewal of the domain name registration."
Because of paragraph
(iv) It is independently verified that the Respondent has given false contact details to us; or
(v) The domain name was registered as a result of a relationship between the Complainant and the Respondent, and the Complainant: (A) has been using the domain name registration exclusively; and (B) paid for the registration and/or renewal of the domain name registration."
Because of paragraph
tions increase the patient compliance?
What would be the developing cost?
How to tackle the risks encountered during combination product developmen
What would be the developing cost?
How to tackle the risks encountered during combination product developmen
3(c)(i) of the Policy, it is unwise to offer to sell the domain to a trade mark owner where there is a dispute or the potential for a dispute. Another effect of that paragraph is that it is easier for a complainant to prove his or her case where a domain name is used commercially. For this purpose, commercial use includes serving pay-per-click advertising or carrying affiliate links.
Paragraph 3(c)(v) is designed to deal with the all-too-common situation where an employee of a company (often in the IT d
Paragraph 3(c)(v) is designed to deal with the all-too-common situation where an employee of a company (often in the IT d
t?
As combination products don't fit into the traditional categories of drugs, medical devices, or biological products, the USFDA is in the process of devel
As combination products don't fit into the traditional categories of drugs, medical devices, or biological products, the USFDA is in the process of devel
partment) or service provider to a company (often a web developer) registers domain name reflecting the company's trade marks, and then refuses to transfer the domain name when a dispute arises.
Disproving an allegation of abusive registration
A non-exhaustive list of factors which may be evidence that the domain name is not an abusive registration is set out in paragraph 4(a) of the Policy:
"(i) Before being aware of the Complainant's cause for complaint (not necessarily the 'complaint' under the DRS
Disproving an allegation of abusive registration
A non-exhaustive list of factors which may be evidence that the domain name is not an abusive registration is set out in paragraph 4(a) of the Policy:
"(i) Before being aware of the Complainant's cause for complaint (not necessarily the 'complaint' under the DRS
ping new procedures for reviewing their safety, efficacy and quality.
Professional from academic institutions, pharmaceutical industries, health care indust
Professional from academic institutions, pharmaceutical industries, health care indust
), the Respondent has: (A) used or made demonstrable preparations to use the Domain Name or a Domain Name which is similar to the Domain Name in connection with a genuine offering of goods or services; (B) been commonly known by the name or legitimately connected with a mark which is identical or similar to the Domain Name; (C) made legitimate non-commercial or fair use of the Domain Name; or
(ii) The Domain Name is generic or descriptive and the Respondent is making fair use of it;
(iii) In relation t
(ii) The Domain Name is generic or descriptive and the Respondent is making fair use of it;
(iii) In relation t
y and representatives from various regulatory agencies are working out to design the regulatory requirements for manufacture and sale of combination products
o paragraph 3(a)(v) [registration as a result of a relationship between the parties]; that the Registrant's holding of the Domain Name is consistent with an express term of a written agreement entered into by the Parties; or
(iv) In relation to paragraphs 3(a)(iii) and/or 3(c) [pattern of abusive conduct]; that the Domain Name is not part of a wider pattern or series of registrations because the Domain Name is of a significantly different type or character to the other domain names registered by the Res
(iv) In relation to paragraphs 3(a)(iii) and/or 3(c) [pattern of abusive conduct]; that the Domain Name is not part of a wider pattern or series of registrations because the Domain Name is of a significantly different type or character to the other domain names registered by the Res
.
As there is an increasing trend of the combination products companies manufacturing such products should be able to tackle the problems involved in the de
As there is an increasing trend of the combination products companies manufacturing such products should be able to tackle the problems involved in the de
ondent."
Paragraph 4(a)(ii) is arguably one of the most important in the Policy. Controversially, some experts have read this rather narrowly, such that domain names which are 100% descriptive of the business in which they are being used are being transferred to complainants in circumstances where it would be extremely difficult if not impossible to put together a credible case in the High Court.
Conclusions
The Nominet procedure is inexpensive and efficient, and the quality of expert decision-making
Paragraph 4(a)(ii) is arguably one of the most important in the Policy. Controversially, some experts have read this rather narrowly, such that domain names which are 100% descriptive of the business in which they are being used are being transferred to complainants in circumstances where it would be extremely difficult if not impossible to put together a credible case in the High Court.
Conclusions
The Nominet procedure is inexpensive and efficient, and the quality of expert decision-making
elopment. They need to be wiser in analyzing the market trends and the regulatory requirements.
Companies that provide selfless information through particip
Companies that provide selfless information through particip
tends to be reasonable. However, the procedure is by no means perfect: it is a blunt instrument and from time to time decisions are issued which seem unfair, at least inasmuch as they represent a significant extension of trade mark owners' rights over the position in trade mark law. Moreover, the very fact that there is a distinct set of rules governing .uk domains (and a distinct dispute resolute procedure) means that, where a dispute involves other domain name extensions as well, there is extra expense
tion in industry events and feedback to regulatory authorities would be able to face the challenges and will be successful in developing combination products
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