Late in 2017, an amendment to the Alternative Dispute Resolution Regulations, pertaining to the adjudication of domain name disputes, was published.
The changes to the Regulations include primarily:
- the introduction of a mandatory mediation process prior to the appointment of an adjudicator;
- an additional remedy of cancellation of an abusive registration;
- a summary decision process;
- consequences in respect of repeat findings of reverse domain name hijacking.
There are some additional amendments which will also be touched on below.
The most notable amendment is the insertion of Regulation 19(a) dealing with informal mediation. In terms of this Regulation, after an adjudicator has been appointed, the adjudicator will conduct informal mediation in a manner which the adjudicator, in his or her sole discretion, considers appropriate. No informal mediation will occur if the registrant does not file a response. The negotiations conducted between parties shall be confidential and will be conducted on a without prejudice basis.
If the parties reach a settlement, then the existence, nature and terms of the settlement shall be confidential, unless the parties agree otherwise. No verbal agreements are allowed and any settlement must be in writing or similar electronic form to be enforceable. If the parties reach a settlement and agree that the domain name should be transferred to the complainant, the mediator must communicate a decision to the second level the domain name administrator to be implemented. This is a welcome amendment, as previously, one had to withdraw the complaint after reaching a settlement and rely on the registrant to comply with the undertaking provided to transfer the domain name. Also, Regulation 34 has been amended to provide for a refund of (a portion of) the fees paid, if the matter is settled. If no amicable settlement is reached within 5 days, the authority must within 2 days inform the provider to appoint an adjudicator in accordance with Regulation 20.
Cancellation of an abusive registration
A welcome addition to the Regulations is the fact that an abusive registration can now also be cancelled (as opposed to being transferred to the complainant). The possibility of cancelling the registration will be considered when the complainant and a third party have rights or registered rights and it is a more appropriate remedy than the refusal of the complainant or transfer of the domain name.
A further significant amendment to the Regulations, is the insertion of Regulation 18(4) which now provides for the possibility of a summary decision. In this regard the complainant has to show, to the reasonable satisfaction of adjudicator, that it has:
- rights in the name or mark, which are identical similar to the domain name; and
- in the hands of the registrant the domain name is abusive registration or offensive.
There should further be no other factors or circumstances present in the dispute that would unfairly deprive the registrant of the domain name.
Regulation 34 has been amended to provide that if a summary decision is reached, the fixed fee payable at lodgement of the complaint, will be reduced by 50%. Further, the fee payable to the authority, which can be utilised to fund other complainants and registrants seeking financial assistance, will be reduced to 5% (as opposed to 10%) in the case of a summary decision.
Reverse domain name hijacking
Stringent consequences have been included in respect of repeat findings of reverse domain name hijacking. The new Subsection 2 of Regulation 9 provides that if 3 disputes from a complainant were refused within a period of 2 years based on reverse domain name hijacking, the provider will not accept any further complaints from the complainant for a period of 2 years from the date of last decision, except on good cause shown.
If legal proceedings are instituted in the High Court on a related matter, the adjudicator should still decide the dispute if already appointed at the time of launch of the legal proceedings. Further, the second level domain administrator must be advised of the proceedings launched and must suspend the implementation of the adjudicator’s decision pending conclusion, settlement or withdrawal of such proceedings. Previously, the second level domain administrator could only keep the matter in abeyance upon service of notice of motion or summons, citing the administrator as a party to such proceedings.
Some further minor amendments include the stipulation of 4 days within which to file a statement of intention to appeal and the time period during which prior findings of abusive registrations will be considered, for purposes of the presumption of an abusive registration, has been extended to 2 years.
Practitioners and members of the public lodging complaints will welcome these amendments and it will be interesting to see, in particular, how mediation processes are managed.