One of SIDN's less well-known activities is co-running the Domjur.nl website (in Dutch only). In partnership with Tilburg University, we use the site to publish decisions made in Dutch court cases about domain names. All decisions made in cases settled through the .nl Dispute Resolution Regulations for .nl Domain Names are available there as well. The site is now a repository for about 1,200 judgements. The cases are grouped into a number of categorised 'dossiers', e.g. brand disputes, well-known Dutch people and domain names based on common typographic errors. The decisions are fully searchable and each one is accompanied by a summary.
Domjur.nl
SIDN supports Domjur.nl so that, when a domain name is the subject of a dispute, the two sides and their legal advisors can easily check on the outcome of previous similar cases. Over the years, as the total number of earlier cases has mounted up, the circumstances under which a registration is (or isn't) considered to breach someone else's rights have become increasingly clear. In a lot of domain name disputes, a rights holder has a choice between going to court and using an alternative dispute resolution process. SIDN offers such a process: the .nl Dispute Resolution System, which is operated by the WIPO Arbitration and Mediation Center. In our system, cases are decided by independent legal experts. The expert 'panellist' uses a set of fixed criteria to decide whether the disputed domain name should be handed over to the complainant.
The .nl Dispute Resolution System doesn't offer the option of an appeal. However, if WIPO decides in favour of the complainant, SIDN doesn't transfer the domain name if, within ten working days, the losing registrant provides the complainant with evidence that the case has been referred to a Dutch court of law.That rarely happens, however. Towards the end of 2015, on one of the few occasions that a losing registrant has gone to court, the ultimate ruling provided us with our first indication of how a Dutch court would view a decision made by a dispute resolution panellist. The case in question related to the domain name Dungs.nl.
Significantly, the judge ruled that a law court was not a 'court of appeal' for the Dispute Resolution System and that its role was not to review the validity of a decision made in the context of that system. However, the judge also ruled that a rights holder (Dungs in this case) would be acting outside the law if they asked SIDN to transfer a domain name on the basis of a Dispute Resolution System decision that was ‘manifestly unjust'. The judge added that the decision in the relevant case was not manifestly unjust. Hence, the court did in fact review the validity of the decision, albeit to a limited extent.
The judge went on to consider whether the registrant had infringed Dungs' rights, or had a legitimate interest in using the disputed domain name. In arriving at decisions on those points, the judge naturally examined the case in the broader context of Dutch law, rather than confining deliberations to the criteria that apply under the .nl Dispute Resolution System. The judge ultimately reached the same conclusion as the dispute resolution panellist: that the registrant had infringed Dungs' rights and had not acted reasonably. That conclusion is not surprising, given that the Dispute Resolution System criteria and jurisprudence have been aligned with the judgements previously made by Dutch courts in similar cases.
What the court's decision confirms is that, although a law court is not a 'court of appeal' for the Dispute Resolution System, it can intervene if a dispute resolution decision is manifestly unjust. A court can also consider a dispute in the broader context of the law, rather than the narrower context of the Dispute Resolution Regulations, as in a preceding dispute resolution case. A registrant who has lost a dispute resolution case does therefore have the opportunity of taking the matter to court, with at least some prospect of that leading to the decision being overturned.
