It is a central feature of the Dispute Resolution Service Policy (DRSP) for .nz domain name registrations that a successful complainant does not receive an award of costs. Unfair? I think so.
The absence of any award under the DRSP is in complete contrast to proceedings in New Zealand's principal courts. It's also ironic given the DRSP is a process to recover domain names that have been registered unfairly.
Why is it then that the DRSP does not provide for costs to be awarded to successful complainants? The answer, I understand, is because it is too difficult for the Dispute Resolution Service to enforce an award of costs - ie make the losing person pay.
I have a certain amount of sympathy with this argument where the respondents in domain name disputes are located overseas. Almost by definition it is impossible (and certainly not worth the cost) of trying to enforce costs awards against overseas registrants.
My sympathy is immediately tempered by two things: first, that the Domain Name Commission allows overseas people to register .nz domain names in the first place (which is not the case for .com.au and .net.au domains in Australia – see below); and, second, there is actually a solution, irrespective of whether registrants are based overseas or not.
To register a com.au or a .net.au domain name registrants must be, for example, an Australian registered company, an Australian partnership or sole trader, an owner1 or applicant of an Australian Registered Trade Mark or an association incorporated in any Australian State or Territory. There are no such qualifying criteria in New Zealand: our domain name doors are wide open. Not good enough, I say.
As for costs awards, the answer is simple and already used in our courts: security for costs. I recently proposed to the Domain Name Commission that when a domain name complaint is filed, the domain name registrant (the respondent) should pay a sum as security for costs into a DNC held bank account so that if the complaint proceeds to Expert determination and succeeds that sum should be paid to the complainant. That amount in security is equivalent to the Expert's fee.
My full proposal can be found on page 2 at Consultation Paper: Proposed Registration of .nz Domain Names at the Second Level
Now I think that's fair, don't you?
1A legal term to describe a person entitled to make an application for a patent. In New Zealand this includes any person claiming to be the true and first inventor, the assignee of the inventor, or the legal representative of a deceased inventor or his/her assignee.
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James & Wells Intellectual Property, three time winner of the New Zealand Intellectual Property Laws Award and first IP firm in the world to achieve CEMARS® certification.