DIY Domain Name Disputes: Expert Tips by Hagit Ben-Artzi
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.
About the Author
Hagit Ben-Artzi runs Sequitur IPS (www.sequitur-ips.com),
which represents both complainants and respondents in domain name arbitration
proceedings.
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