The IPKat has discovered from ZDNet that teenage dotcom millionaire Benjamin Cohen has given up his fight against Nominet, who ordered him to transfer the itunes.co.uk to iTunes. Cohen failed to convince Nominet that he had innocently registered the domain name and, instead of using Nominet's in-house appeal system, Cohen applied to have Nominet's decision judicially reviewed.

The judicial review action was dismissed in July since Cohen delayed before bringing the action. Now Nominet has said that Cohen's company Cyberbritain.co.uk has formally abandonned all attempts to regain the domain name.

Nominet's company solicitor said:
"We always said you can't go running off to court before exhausting the process you are complaining about...And a judicial review is wrong for this anyway — that is for complaining about government decisions — and we're not a government body."
The IPKat doesn't think that this was how the case was decided. He thinks that the judge said that, in principle, Nominet could be judicially reviewed as, if it didn't exist, the Government would have to set up a similar entity. However, the IPKat hasn't seen a copy of the decision. If anyone can furnish him with one, he'd be most grateful.
OUT OF TUNE OUT OF TUNE Reviewed by Unknown on Wednesday, November 23, 2005 Rating: 5


Anonymous said...

Two points. Firstly - if Nominet says "you can't go running off to court before exhausting the process you are complaining about" - then how come its rules explicitly allow complainants to do just that. As an example, see the current High Court action taken by Game plc over the game.co.uk domain, where the Nominet Appeal brought by the registrant has been suspended pending passing off and trade mark infringement claims issued by the plc.

Secondly, Nominet says "we're not a government body" - so presumably they are subject to the Competition Act just like any other privately owned company. The OFT should therefore open up the ability to issue .uk domains and remove their monopoly position.

Nominet seems to want to both have its cake and to eat it.

Anonymous said...

The possession of a monopoly is not contrary to the Competition Act, fortunately for the owners of IP rights.

Anonymous said...

Indeed not.

However Chapter I prohibits agreements that "have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom". Query the status of the agreement that gives Nominet UK exclusive rights ti issue .uk domains.

Further Chapter II prohibits "abuse of a dominant position in a market". Query whether the way Nominet imposes terms such as the DRS on all prosepective registrants in a "take it or leave it way" - and also I believe provides cheaper prices for registration of domains to its own members - breaches this.

I suggest that Nominet should either be an agency of government (along the lines of Companies House) - or it should be opened up to genuine competition. It should not be allowed to have it both ways.

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