7 April 2014

Gripe sites and domain disputes: know the limitations

A recent case brought by the laser eye surgery company Optical Express highlights the limitations of Nominet's Dispute Resolution Service (DRS), which is available for registrants of .uk (and later this year also .wales and .cymru) domain names.

Now, personally I would rather wear glasses than have anyone point lasers in my eyes, but I know many people who have had the procedure and are very happy with the results.

One person who was not, however, happy with the results was Ms Sasha Rodoy, the owner of the domain name opticalexpressruinedmylife.co.uk and the operator of a website associated with that name which campaigns for better regulation of the industry. (Ms Rodoy's personal experience was in fact with a competitor of Optical Express called Optimax, and she had also registered a domain name optimaxruinedmylife.co.uk, although that was later transferred to Optimax following a settlement of litigation between those two parties.)

In April 2012 Optical Express made a complaint under the DRS that the domain name was an abusive registration which was defamatory and unfairly detrimental. However, that complaint was dismissed on the established precedent that a so-called "gripe site" of this nature could make fair use of a company's brand in its domain name, where (as in this case) Nominet's Expert determined it was “wholly devoted to honest criticism and open discussion and not potentially tainted by commercial concerns.” (This followed the reasoning of an earlier decision involving the domain name ihateryanair.co.uk.)

Having lost the first case, Optical Express tried again and commenced a second complaint in October 2013. They said there was new evidence that justified a rehearing, notably that Optimax (Optical Express' competitor) were partially funding the opticalexpressruinedmylife.co.uk website, and that the website received additional funding from advertising. The second complaint was also dismissed, but this time Optical Express appealed. 

The Appeal Panel noted that the DRS procedure was "intended to be relatively quick and straightforward, and with correspondingly modest fees and costs involved." It made no provision for examination and cross-examination of witnesses and was therefore inherently unsuitable for making findings of fact, where the allegations of dishonesty made against Ms Rodoy (that she was being paid by Optimax to damage Optical Express' business) were both serious and far from clear cut.

The Panel also noted in this case that links to a second website (mybeautifuleyes.co.uk) containing commercial advertising did not change the finding of fair use of the domain name. The advertisement was for a firm of a solicitors offering clinical negligence advice so naturally fitted in with Ms Rodoy's campaigning objective. Moreover, the income received was relatively modest, and was justified by the fact that Ms Rodoy was  clearly expending very significant time and effort, and it was presumed at least some out of pocket costs, in promoting her campaign (including operating the website).

The Appeal was therefore dismissed, serving as a further reminder to would-be complainants that gripe sites can play a legitimate role in a democratic society and that if there is any evidence of ulterior motives, the DRS may be ill-equipped to deal with it.

All the decisions referred to above can be found on the Nominet website.

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