Wednesday, 20 November 2013

.KE Alternate Dispute Resolution Policy (ADRP)

Kenya Network Information Centre (KENIC), the organisation responsible for the administration of .KE domain names, has recently uploaded their Alternate Dispute Resolution Policy (ADRP), which will govern domain name disputes ending in .KE.

A Complainant under a .KE domain name dispute will have to prove that:
(A) It has rights in respect of a name or mark which is identical or similar to the domain name and, under the ownership of the Registrant, is an abusive registration; OR
(B) The domain name under the ownership of the Registrant is an offensive registration.

The ADRP defines an abusive registration as a domain name which either –
  • 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 
  • has been used in a manner that takes unfair advantage of, or is unfairly detrimental to the Complainant’s rights
An offensive registration is defined as a domain name in which the Complainant cannot necessarily establish rights but the registration of which is contrary to law, contra bonos mores or is likely to be offensive to any class of persons. This policy seems to be very similar to the CO.ZA ADR.

It is interesting to see the following two paragraphs under Section 5, which has the heading How a Registrant may indicate that domain name is not an abusive registration.

(3) Trading in domain names for profit, and holding a large portfolio of domain names, are of themselves lawful activities. The Arbitrator shall review each case on its merits. 
(4) Sale of traffic, that is, connecting domain names to parking pages and earning click-per-view revenue, is not of itself objectionable under this Policy. However, the Arbitrator shall take into account: 
a) the nature of the Domain Name; 
b) the nature of the advertising links on any parking page associated with the Domain Name; or 
c) that the use of the Domain Name is ultimately the Registrant’s responsibility. 

We are not sure why subsection (3) was included into the ADRP, we can only assume that a registrant who is well versed in the value of domain names ought to know that registering one which is identical or confusingly similar to a trade mark could have legal repercussions.

Subsection (4) makes it difficult for the Respondent to allege that it was not aware of the affiliate links accessible from his domain name. 

The ADRP does make provision for mediation like the Nominet ADR (.UK domain name disputes).

Due to the local presence requirement for .KE domain name registrations a local representative in Kenya needs to be provided for an ADRP. 

Lexsynergy has a local presence in Kenya and can assist with and other .KE domain name disputes.

Email for more information.

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