Cybersquatters beware

This newly formalised process to resolve disputes arising from domain name registrations must be seen as a giant leap forward for e-commerce and intellectual property law in SA, says Steven Yeates, partner in the trade mark litigation department at IP law firm Adams & Adams.

With effect from April this year, domain name registration disputes can now be taken to what can be termed `the domain name small claims court`, indicates Dr Hasmukh Gajjar, chairman of the .za Domain Name Authority (.za DNA), the organisation that oversees SA`s domain names on the Internet.

The process is governed by the Alternate Dispute Resolution (ADR) Regulations that were signed into effect last year November by Communications Minister Ivy Matsepe-Casaburri.

Megan Reimers, an associate at IP law firm Spoor & Fisher, says the South African Institute of Intellectual Property Law and the Arbitration Foundation of South Africa have been accredited as dispute resolution service providers under the regulations.

Before these new regulations were formalised, complainants could only go to the High Court to resolve domain name registration disputes. But with the new regulations and the appointment of dispute resolution service providers, trademark owners are afforded a viable alternative to dragging cybersquatters to the High Court, says Yeates. "Not only is the dispute resolution process faster and simpler, but it is also potentially more cost effective," he says.

ON THE INTERNATIONAL STAGE

Reimers says the new regulations that ushered in the alternate dispute resolution process go a long way to ensuring that SA keeps pace with international developments.

She says on the international front, the US Department of Commerce took steps to regulate the industry in the late 1990s when it created the Internet Corporation for Assigned Names and Numbers, or ICANN.

"ICANN established a dispute resolution policy for administering domain name conflicts for certain top-level domains known as the Uniform Domain Name Dispute Resolution Policy, (UDRP)."

Reimers explains that the UDRP policy was adopted by all domain name registrars in the .biz, .com, .info, .name, .net and .org top-level domains.

Service providers like the World Intellectual Property Organisation and the National Arbitration Forum were then appointed to mediate domain name disputes.

She says that SA`s ADR Regulations and the appointment of service providers to mediate disputes is in line with these international trends.

POWER IS YOUR HANDS

Yeates says members of the public are now able to object to the registration of a domain name on the basis that it constitutes an abusive or an offensive registration.

Reimers explains that an `abusive registration` takes unfair advantage of the rights of the complainant: "This covers all rights, of whatever type, such as intellectual property rights, commercial, cultural, linguistic and personal rights."

An `offensive registration` is contrary to law or likely to offend any class of persons, she says.

Gajjar says parties can lodge a complaint with a service provider for a fee of R10 000 for one adjudicator or R24 000 for a panel of three adjudicators.

After the single adjudicator or the panel of adjudicators has heard all arguments presented and a ruling is given, the ruling can be appealed.

But this will cost an additional R24 000. On appeal, new facts cannot be presented as in any other appeal hearing. Where there was a panel of adjudicators, an appeal process will not be afforded to the complainants

He says though the fees seem hefty, they are significantly less than the R250 000 that would be spent at the High Court. In addition, a service provider`s resolution can be reached after a month as opposed to waiting a year at the High Court for a resolution to be reached.