In Michael Toth v Emirates  EWPCC 18, his Honour Judge Birss QC, refused to strike out an application seeking to overturn a decision of a Nominet appeal panel that the registration of a domain name was abusive within the Nominet Dispute Resolution Service (DRS) Policy. There was nothing in the contractual relationship between Mr Toth and Nominet to suggest that a decision of a Nominet expert or appeal panel was final.
The Defendant in these proceedings, the airline Emirates, had filed a complaint under the Nominet DRS against the registration of emirates.co.uk by Mr Toth. On appeal, the Nominet panel found the registration abusive and ordered the transfer of the domain name to Emirates.
Mr Toth applied to the courts for a declaration that the domain name was not an abusive registration. Emirates applied to have that application struck out. It argued that the only basis on which a Nominet decision of this nature could be challenged was under the law relating to “expert determination”. Mr Toth argued that for the law of expert determination to apply, the decision of the expert had to be “conclusive”, which was not the case here.
The issue turned on the contractual relationship between Nominet and Mr Toth. It included the domain name resolution system at issue, which included the DRS Policy, which ran to 14 clauses, and the DRS Procedure, which ran to 19 clauses. It was all governed by the Terms and Conditions, which made it clear that the DRS was binding. The judge identified clause 17.c of the DRS Procedure as the key provision, viz:
If the expert makes a Decision that a Domain Name registration should be cancelled, suspended, transferred or otherwise amended, we will implement that Decision by making any necessary changes to our domain name register database after ten (10) Days of the date that the Parties were notified, unless, during the ten (10) Days following the date that the Parties were notified we receive from either Party:
- an appeal or statement of intention to appeal complying with paragraph 18, in which case we will take no further action in respect of the Domain Name until the appeal is concluded;
- official documentation showing that the Party has issued and served (or in the case of service outside England and Wales, commenced the process of serving) legal proceedings against the other Party in respect of the Domain Name. In this case, we will take no further action in respect of the Domain Name unless we receive:
- evidence which satisfies us that the Parties have reached a settlement; or
- evidence which satisfies us that such proceedings have been dismissed, withdrawn or are otherwise unsuccessful.
In the judge’s view, clause 17.c was specifically intended to, and did, allow for a court review of the decision as to who owns a domain name. It was intended to allow a registrant, who was about to lose their domain name because a complainant was successful under the DRS, to come to court for relief, which relief was contemplated to be something that would have the result of stopping the transfer from taking place. The contract neither purported to preclude nor limit the court’s jurisdiction in any way. There was no term that expressly provided that the determination by the expert or the appeal determination was final or conclusive. In the judge’s view, clause 17 indicated quite the opposite. As such, the case law on expert determination did not apply in this case. Accordingly, the judge dismissed the application to strike out the declaration that the domain name was not abusive.
Judge Birss was given “considerable concern” by the prospect of his decision opening the floodgates to litigation in relation to the Nominet DRS. Although this was only an application for strike out, it suggests that the process of recovering domain names has the potential to become much more expensive and time consuming.