Conflicted domain names online dispute resolution pilot
In March 2022, following an extensive review of the Domain Name Commission’s (DNCL) dispute resolution service in 2019, we launched our Online Dispute Resolution (ODR) pilot, hosted by Immediation. Initially, our ODR pilot was intended for general .nz domain name disputes, but we soon saw an opportunity to utilise the ODR platform to facilitate the resolution of the conflicted domain names, progressing the .nz Advisory Panel’s 2020 recommendation 24 that a deadline should be set for parties to come to an agreement on resolving conflicted domain names.
Background — what is a conflicted domain name?
On 30 September 2014, the .nz domain name space released registrations directly at the second level, meaning more choice in .nz domain names. For example, you could obtain a shorter form domain name such as ‘anyname.nz’, and didn’t need to first have, say, anyname.co.nz or anyname.org.nz.
As a result of opening registrations at the second level, some .nz domain names became conflicted.
A conflicted domain name is a .nz domain name that is available, but is unable to be registered until it is resolved, for example: if anyname.co.nz and anyname.org.nz were registered to two different domain name holders, then anyname.nz became a conflicted domain name.
If there was more than one existing .nz domain name (such as anyname.co.nz and anyname.net.nz) then we offered both domain name holders preferential registration eligibility to the new shorter version of the domain name ‘anyname.nz’. Registrants holding a domain name that meets the specific criteria outlined in section 10 of the policy can use the conflicted names process to reach an agreement on who can register the .nz name.
Until eligible parties to a conflicted domain name can agree or a change is made to the .nz Rules to release the domain names, these names remain unavailable (blocked) to everyone.
Why we offered Online Dispute Resolution
Despite the fact that almost a decade had passed since the release of the second-level .nz domain names and the creation of the conflicted names process, we were experiencing a steady decline in the resolution of .nz domain names that were conflicted and less engagement from eligible parties. At the launch of the pilot in March 2022, there were still over 3650 eligible registrants relating to 1631 conflicted domain names. This provided us with a pilot group of .nz registrants to offer the ODR service to and facilitate an e-negotiation offering. The ODR service was considered relevant as it allowed registrants who had no current or ongoing relationship to potentially negotiate quickly, with no human intervention.
If no agreement was reached, mediation was still available with an in-house mediator.
This would enable the DNCL to also gauge how parties would respond to an online dispute resolution service offering, as well as engage with domain name holders who had rights to conflicted domain names and offer them another opportunity to try and resolve the conflict.
What we did
The majority of conflicted names had two eligible parties, some had more, and some were found to have not been in conflict after all, as they were registered by the same registrant. Initially, all conflicted two-party sets (across 1,119 conflicted names) were invited to participate in the ODR forum. This meant 2,238 individual invites were sent to registrants (two invites per conflicted name), resulting in 806 signing up for ODR on the platform (36.1%).
Each registrant received a minimum of five email interactions from the DNC to encourage participation: introducing them to ODR, inviting them to participate, providing updates, and offering a ‘last chance to register’ date. Not all matters were suitable for the ODR platform, as it could only accommodate two-party matters. Alongside the ODR offering, we reached out to other conflicted sets in which there were more than two parties and offered free mediation.
For the period 1 April 2022 to 30 November 2022, 89 .nz conflicted domain names were resolved through the ODR process. Subsequently, an additional 60 names were resolved via various methods leaving 1422 outstanding as of 5 July 2023.
In the financial year 2022-2023, the number of preference changes surged (resolving a conflicted name) in contrast to periods when this initiative was not running. Our observations over time are that previous resolutions were mostly last-person standing resolutions as opposed to registrants changing their preferences.
The .nz Advisory Panel’s 2020 recommendations 24-26 included that InternetNZ should set a deadline for parties to come to an agreement on resolving conflicted domain names. Following the deadline expiration, names should be released for general registration.
Our next step is to provide an internal report on the pilot and outcomes to InternetNZ and suggest some options for consideration on the next steps.
In addition to the above, our recommendations will cover topics such as the current conflicted names process policy clauses, including, but not limited to the ongoing ability to change preferences and self-resolve conflicts, the offering of facilitation, and key points to consider if a decision is made to release the remaining conflicted names or keep them blocked.
Any options will note the importance of providing registrants with clear outcomes on the conflicted names process. At the front of mind will be the need to balance ongoing resources available at DNCL and the views expressed by registrants since the introduction of second-level domain names.
Some registrants advised us they did not want to participate and we refrained from inviting them to engage.
Last person standing resolutions are when a conflicted domain name is canceled leaving only one preference holding party. When this situation arises, the last person standing preference holder has a limited time to register the domain name before it is released to the market.
The resolutions in 2021 and 2022 were due to identification of self-conflicted names (where the same party was using both the names in the conflict).