Disputes involving domain names with .nz extensions (for example, .nz and .co.nz) can be resolved using the Dispute Resolution Service Policy (DRSP). The DRSP is administered by the Dispute Resolution Service arm of the Domain Name Commission in Wellington.
By way of brief introduction, the process under the DRSP is as follows:
- Stage 1: Complainant files complaint
- Stage 2: Respondent defends complaint by filing response (not compulsory)
- Stage 3: Complainant files reply (if response filed)
- Stage 4: Informal mediation to try and resolve dispute (if response filed)
- Stage 5: Expert determination of the complaint (if no response filed or mediation fails)
Assuming the complaint is defended, and mediation fails, the whole process takes about 14 weeks, give or take a week or two.
The DRSP is without question an excellent forum for deciding domain name disputes. It is inexpensive and, dare I say it, lightning fast when compared to court proceedings. (If only there was a similar system for resolving other kinds of IP disputes...watch this space...).
In my view however the DRSP has one fundamental flaw: that in a defended complaint the complainant has to pay 100% of the expert determination fee (currently $2000+GST).
This is unfair. Which is ironic given the DRSP is based on the principle of fairness.
Why is it unfair? Because: one, it does not reflect the respondent's equal participation in the dispute resolution process; and, two, it presents no incentive for a respondent to settle during informal mediation (there being no financial consequence on the respondent if settlement is not acheived). This second reason often leads respondents - especially those whose only goal is to cause a complainant financial pain - to say 'Why should I settle? It's no skin off my nose if I don't.'
Fairness surely demands that each party to the dispute pays an equal portion of the fee, no?
I accept that in an undefended complaint a complainant has to pay the entire fee; but even then a complaint should, I believe, have the option to pay a lower fee for a summary decision, as complainants have under the equivalent policy in the UK on which the DRSP is modelled.
In New Zealand we constantly trumpet how innovative we are; how we were or are the first to do this, the first to make that. We also on many fronts lead the charge on fairness and equality. Is it not then about time we practiced what we preach and change the complainant-pays feature of the DRSP to make it fair and equal? And to give complainants the opportunity to pay less for a decision in an undefended complaint? I think so.