Expert Determination at the Domain Name Commission
Keri Morris ODR Establishment Manager
Things aren’t always straightforward, and when disputes arise in addition to the consensual mediation process, at DNC, we also offer expert determination.
What is expert determination?
As a dispute resolution process, expert determination at the DNC is where a party in dispute over a domain name requests the DNC to appoint an independent person — the expert — to make a decision or ruling on the outcome. When a registrant registers a .nz domain name, they agree to abide by the .nz rules, which is the contract that allows the matter to be referred to expert determination.
How can it be used?
Expert determination can be used to resolve a wide range of matters, or be limited to issues. Following the rules of natural justice, experts considering domain name disputes, are limited to considering evidence based on the complainant's application and evidence demonstrating that they have Rights and that there is an Unfair Registration. The definition of these are:
- Rights include, but are not limited to, rights enforceable under New Zealand law.
- Unfair Registration means a Domain Name which either:
i) was registered or otherwise acquired in a manner which, at the time when the Registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant's Rights; OR
ii) has been, or is likely to be, used in a manner that took unfair advantage of or was unfairly detrimental to the Complainant's Rights
The types of disputes that apply for this service include:
- A newly established business has set up a website providing the same services as you, and their domain name is virtually the same as yours. You believe you are now losing business and customers.
- You failed to re-register the domain name, and now someone else has it. You’d like to get it.
- Someone has registered a domain name almost identical to your business name and is impersonating your brand. This is causing confusion to your customers and loss of revenue.
- Your business partnership has fallen apart, and you now cannot access your emails as the other person is the registrant of the domain name.
As the expert determination process is similar to a court process, and only information that the parties provide to experts can be considered. If you are a complainant - or a respondent - it is important to include all your evidence. The expert does have the power to ask for additional information from the parties if they feel it is necessary.
Ensuring a fair process
To ensure procedural fairness and give opportunity for parties to respond to any adverse information that could influence the experts decision, the .nz rules have set timeframes and a clear process, as follows:
- Following unsuccessful mediation, a complainant can make a submission for expert determination, and pay the $2,000 + GST fee.
- Once the fee and application have been processed, the respondent has 10 working days to file a response.
- The complainant then has 5 working days to file a reply to the respondent’s response, following which the DNC will appoint an expert.
- The expert has 10 working days to provide the expert decision. The decision is sent to the parties.
- The parties have 10 working days to appeal the decision.
An expert can make a decision to transfer a domain name or to dismiss the complaint. If the expert determination orders a transfer of a domain name, DNC will enact that decision at the end of the 10-day appeal period.
If you have a question about this process, please reach out to the team.