| This is a distillation of the wisdom acquired through | | | | decision, and where: a middle-aged lawyer in an |
| years of involvement in domain name dispute | | | | air-conditioned office. Although you need the |
| proceedings. It won't make a hopeless case winnable, | | | | sympathy of that lawyer, you it's best not to be |
| but it might stop you from making a strong case | | | | seen to be asking for it. |
| un-winnable. | | | | (6) Fit the facts to the rules, the rules to the facts |
| (1) Know your chances | | | | Rarely, if ever, will the rules fit the facts like a glove. |
| Make an assessment of your chances of winning | | | | More commonly, you'll find that the facts have an |
| before embarking on a dispute. | | | | extra finger, or the glove is too tight, or too |
| You will need, at a minimum, to read and understand | | | | capacious. |
| the rules governing the relevant kind of complaint; | | | | Your handling of the tensions between the facts and |
| learn when complaints are upheld, and when rejected. | | | | the rules will be a key factor in the success or failure |
| Unless the case is very clear-cut or you're a very | | | | of your argument. By careful presentation of both |
| quick learner, your initial view may lack nuance, but | | | | the facts and the law, it is possible to make it look |
| you should at least know whether you have a | | | | like the latter was made to fit the former. In this |
| chance of succeeding or none at all. | | | | way, weaker arguments can be made stronger, and |
| If you can't form an initial view, some lawyers will be | | | | stronger arguments can be made compelling. |
| prepared to look at the papers and consider whether | | | | (7) Weight your evidence |
| you have a prima facie case without charge. | | | | One kilo of evidence is too much; one gram too little. |
| (2) Write first time | | | | To reiterate: panellists will tell you that they don't get |
| It is usually worth writing to the other side about a | | | | paid enough to spend their weekends reviewing your |
| domain dispute before making a complaint. There are | | | | appendices. However, a certain quantity of |
| two main reasons. First, the cost and aggravation of | | | | documentary support is necessary in all cases, to |
| a domain name dispute can sometimes be avoided | | | | demonstrate the prior dealings of the parties, the use |
| by a simple exchange of letters. Second, even if the | | | | of the domain name in dispute, the rights of the |
| dispute isn't resolved by correspondence, the fact | | | | parties, and so on. |
| that you have tried to resolve the dispute without | | | | As a rule of thumb, you should not include more than |
| recourse to arbitration proceedings will create a | | | | one file of evidence and, if possible, that file should |
| favourable impression with some panellists. | | | | be slim enough to allow the panellist to review its |
| Neither goal is likely to be achieved if the | | | | contents in less than 15 minutes. (Of course, you |
| correspondence is disproportionately aggressive or | | | | may need to break this rule in some cases.) |
| sarcastic: your letters should be lucid, polite and | | | | (8) Find a precedent or two |
| concise. | | | | The major dispute resolution services have now built |
| The problem with writing before filing a complaint is | | | | up a substantial body of case law. Few if any |
| that the domain registrant could transfer the domain | | | | panellists read every decision; most read only a small |
| to another person before you get a chance to file - | | | | percentage of the decisions issued. |
| possibly to a person with better rights in the domain | | | | Panellists don't want to make decisions that are |
| name than the registrant. You should assess this risk | | | | inconsistent with previous case law: they don't want |
| carefully before deciding whether to write first. In | | | | to invite the criticism of their colleagues or academic |
| making this assessment, one important consideration | | | | commentators; nor do they want to have their |
| will be the cost of filing a complaint and thereby | | | | decisions overturned on appeal. You can help the |
| blocking transfers. In Nominet (.uk) proceedings, it | | | | panellist avoid these ignominies by pointing him or her |
| costs nothing to file a complaint and have domain | | | | in the direction of a decision or two which supports |
| transfers blocked until the dispute is resolved; | | | | your interpretation of the rules. |
| however in most other kinds of domain name | | | | Don't however go overboard with the authorities. |
| proceedings, the complaint fee is payable upon filing. | | | | Generally, you should cite only one or two authorities |
| (3) Know your limits | | | | in each case. However, in some circumstances - for |
| Time limits, that is - and word limits. In domain name | | | | example, where there is a well-known case, or your |
| disputes both time limits and word limits can be short. | | | | opponent has cited a case, which contradicts your |
| It's important not to contravene either: missing time | | | | "case theory" - then you may need additional |
| limits can be fatal to your case, and looks careless at | | | | authorities to establish your case. |
| best; exceeding word limits will annoy the panel. | | | | Sometimes it may be necessary to cite a court |
| Panellists will tell you that they don't get paid enough | | | | judgment; only do so if it really is necessary. |
| to read what they don't have to read, when they | | | | (9) Be a pedant |
| don't have to read it. | | | | Panellists are usually lawyers; lawyers are professional |
| (4) Tell a story | | | | pedants. You don't want the condescension of the |
| The "pleadings" of domain name arbitration | | | | panellist, so try to avoid typos, inconsistent usage, |
| proceedings - complaints, responses and (in Nominet | | | | and errors of grammar and spelling. Once your |
| proceedings) replies - are never going to make great | | | | document is prepared, proof read it; then have a |
| reading. The formal requirements of these | | | | friend proof read it; then proof read it again. |
| documents make them tedious, even for readers | | | | (10) Read, re-read and re-re-read the rules |
| professionally acclimatised to tedium. | | | | Read the applicable rules before drafting your |
| The easiest way to make the document more | | | | complaint (or response); and during; and after. Check |
| interesting is to write it as you would a simple story. | | | | that your document meets all the formal |
| Insofar as the document recounts facts, these | | | | requirements. |
| should usually be in chronological order. You also need | | | | (11) Use your service provider |
| to be clear about which person or entity is | | | | You're the customer and, although you cannot be |
| undertaking which action. This is obvious in the case | | | | always right when the service is dispute resolution, |
| of natural persons, but can be unclear where you are | | | | you can be a little bit always right. They won't give |
| dealing with legal entities such as companies and | | | | you much in the way of substantive advice, but |
| partnerships. | | | | most will help clear up procedural issues. |
| Even the non-factual, argumentative sections of your | | | | (12) Stay relevant |
| pleadings can be organised in the same way as a | | | | Irrelevant material is most unwelcome to the panellist. |
| story, with a clear beginning, middle and end - | | | | You may think you can make your opponent look |
| although the order an argument will be logical rather | | | | bad by telling the panel how he or she stole your |
| than chronological. | | | | money, or killed your cat. Resist that urge: it will only |
| (5) Keep cool | | | | make you look bad. Ensure all of your arguments and |
| Your Complaint or Response should be dispassionate | | | | evidence are directed to the rules upon which the |
| and measured - and give the appearance of | | | | panel must make its decision. |
| objectivity. Remember who is likely to be making the | | | | |