A notice published on 11 December 2015 under the Electronic Communications and Transactions Act 2002 (ECTA) extends the Alternative Dispute Resolution (ADR) procedure that applies to .co.za names to .net.za, .web.za and .org.za names.
We’ll have to wait and see how significant this is from a practical point of view. But most readers will know that the ADR procedure that we have for .co.za names has been well received – ADR proceedings are far cheaper than court proceedings, and the cases are determined by people who are experts in trade mark law.
The ADR procedure creates an exception to the first-come-first-served rule. It provides that a company or organisation that is aggrieved by a domain name registration can lodge a complaint if it feels that the registration is ‘abusive’. A domain name registration may be abusive for a number of reasons, for example if it takes unfair advantage of another party’s rights, if it is intended primarily to frustrate the rights of another party, or if it is used in a way that’s detrimental to another party’s rights. The rights we’re talking about here include registered trade marks and common law trade marks (rights derived through use).
The Regulations list factors that might indicate that a registration is abusive. For example, the fact that it was registered specifically to disrupt another party’s business. Or the fact that it’s used in a way that suggests a connection with another party’s business. The Regulations also list factors that might indicate that the registration’s not abusive. These include the fact that the person who registered it is making genuine commercial use of the registration.
A registration can also be attacked if it is ‘offensive’. This term is defined to mean contrary to law, contrary to good morals, or likely to cause offence to any class of persons. Examples listed include names that advocate hatred based on race (a rather hot issue in South Africa right now), or names that constitute incitement to cause harm.
There have been a large number of ADR decisions relating to .co.za names over the years. Perhaps we’ll soon start seeing some relating to .net.za, .web.za and .org.za names.
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