What constitutes a dispute?
ZADNA places a high value on the protection of intellectual property and other rights involved in the registration of .za names to ensure that the .za namespace can be trusted.
ZADNA has an Alternative Dispute Resolution (ADR) process to allow aggrieved parties to lodge disputes of .za domain names, and have their disputes resolved in a faster and more cost-effective way than via courts of law.
A domain name dispute is a dispute regarding a registered domain name. Such a dispute is between a complainant and a person who registered a domain name (i.e. registrant).
According to the ADR regulations (see below), the basis of a domain name dispute can either be an abusive or an offensive registration.
What is an abusive registration?
An “abusive registration” is basically a domain name registration which is registered to take unfair advantage of another person’s rights, or to be detrimental to, or infringing, another person’s rights. The complainant must show that the complainant has rights in respect of a name or a mark which is identical or similar to the registered domain name, and that in the hands of the registrant, the registration of the domain name is abusive.
Example: An entity named ABC has DEF as its competitor. DEF decides to register abc.co.za as its domain name. This registration would constitute an abusive registration in that by registering abc.co.za, DEF is preventing ABC from registering a domain name that is the same as ABC’s company name.
Section 4 of the regulations provides a number of factors which a complainant can use to prove abusive registration. These include:
Circumstances showing that the registrant registered a domain name primarily to:
- sell, rent or transfer the domain name to the complainant, its competitor or 3rd party for profit;
- intentionally prevent the complainant from registering a mark or name to which the complainant has rights;
- unfairly disrupt the business of the complainant; or
- prevent the complainant from exercising their rights.
Circumstances indicating that the registrant has registered the domain name to deceive the public into believing the name is registered, used or connected to the complainant.
Evidence, when combined with other factors, shows that the registrant is involved in the pattern of making abusive registrations.
Circumstance showing that the registrant registered the domain name as a result of a relationship with the complainant, and the complainant has been exclusively using the domain name and has paid for its registration or renewal
Section 5 lists a number of factors which the registrant may use to prove that the registration is not abusive.
What is an offensive registration?
A domain name registration is offensive if the name is proven to be promoting hatred based on race, ethnicity, gender or religion, and/or is proven to constitute incitement to cause harm.
Example: A domain name called men-are-dogs.co.za is offensive as it incites hatred against a certain gender.
The Minister of Communications promulgated the Alternative Dispute Resolution (ADR) Regulations in November 2006 to resolve disputes relating to domain names registered the co.za domain. In terms of the ADR Regulations, the Authority is mandated to accredit suitable service providers to provide ADR services, and to receive fees from the providers for each resolved dispute.
There are two panels that can hear a dispute. Fees differ depending on the panel chosen:
- One (1) adjudicator panel – for a fee of R10 000 (ten thousand Rand)
- Three (3) adjudicator panel – for a fee of R24 000 (twenty four thousand Rand)
The parties to a dispute choose the panel they wish to use.