The UK root registrar, Nominet, has ruled against small software company Findlay Steele in the ongoing dispute with financial watchdog FSA over the domain www.fsa.co.uk.
In its decision, Nominet cites the fact that a firm of solicitors sent a confidential email to Findlay Steele at fsa.co.uk, rather than to the Financial Standards Authority at fsa.gov.uk, as evidence that the domain is liable to cause confusion for Internet users.
As such, the domain has been put on hold for a month while an appeal is held. It will be available until then. Both parties are advised to come to some form of agreement. If they don't within that time, the domain will be put up for sale again on a first-come, first-served basis.
Last week, we explained the lengthy (and fair) process that Nominet has gone through to try to resolve the issue. It is undisputed that Findlay Steele registered the domain in good faith. However, the FSA feels that there is a risk of confusion with the domain and since material sent to it may have strong commercial implications, it ought to have it.
Several discussions have taken place in the past over a sale of the domain but have all come to nothing. Neither side seems keen to tell us how much money was on the table.
Wrong, Wrong, Wrong
However, while we are usually impressed with Nominet's approach to domain dispute matters, we feel it has got it wrong in this case.
To suggest that the domain ought to be handed over to the FSA because a firm of solicitors made a mistake and sent an email to FSA.co.uk is daft and illogical.
First of all, the solicitors are completely to blame here. If the firm is stupid enough to send confidential material to an email address without carefully checking it, it deserves all it gets. It is perverse to punish the recipient. Equally, any email sent with such information should be encrypted. As such, even if it goes to the wrong place, the recipient can't read it.
Secondly, if this reasoning is used, then why isn't the FSA also entitled to www.fas.co.uk? Or sfa.co.uk? The principle remains the same. And then what of .org, .net and so on? This is an impossible precedent and one that sounds as if it has come out of the illogic haven that is WIPO.
The Nanny State
And thirdly, there are already hundreds of examples in the real world that would point to this concept as deeply flawed. For example, there is a magazine called The Register. We get calls for now and again, but as it is a magazine for nannies our conversations tend to be short and completely unhelpful. Our phone number is also similar to the number for Lastminute.com. We get told loads of confidential customer information before we can persuade them they have the wrong number.
And then there's the numbers similar to cab numbers or pizza delivery places. Then there's two Arthur's and Sons in a town - one a window cleaner, one a gynaecologist - "yes madam, it'll only take five minutes with my soap and sponge, I'll come round now with my ladder" - where would pre-war humour have been without it?
The suggestion is that because money is involved, then a different set of rules ought to apply. So how much money exactly do you need before you get dispute rules Mk II? We also hope that the FSA's threat to go to the law courts if the decision didn't go its way had no bearing at all on Nominet's decision.
It's not all bad news though. Nominet says that if Findlay Steele manages to remove the confusion between the sites, it may change its mind. Also, if one side complains of the judgment, it will refer the case to an independent judge.
This is precisely what Findlay Steele intends to do. It is to appeal against the decision, as it believes "we should not be held responsible for someone else's carelessness in typing an address". It is also reviewing its email system and procedures to find a way to rebound any emails not intended for it. It then hopes to ask Nominet to reconsider.
If you want to know more, Findlay Steele has posted the whole sorry saga and correspondences on its site, fsa.co.uk (the FSA has nothing about the saga on its). If that site is taken down, Findlay Steele intends to operate through www.f-s-a.co.uk.
While we are disappointed with Nominet in this case, we do feel that we ought to share its comment on the flawed UDRP system used to decide most other domain disputes in the world. This is what it says in its judgment:
"Decisions made in relation to domain names registered with manager of Top Level Domains, that have incorporated ICANN's UDRP into their Terms and Conditions, are made on grounds which differ substantially from those set out in Nominet's rules. As Nominet's authority to suspend the delegation or cancel the registration of a Domain Name is derived directly from its Terms and Conditions, we confirm that Nominet has no authority to take into account decisions made on grounds other than those set out in its Rules." ®