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Emily Taylor, an internet specialist lawyer and consultant, examines the significance of a recent decision of the Nominet Dispute Resolution Service (DRS) involving Optical Express which has lost for the second time against the same domain name, opticalexpressruinedmylife.co.uk. Why did Optical Express lose, and what do the Optical Express cases mean for the ‘fair use’ defence in the future?
The domain name opticalexpressruinedmylife.co.uk was registered in 2012 by Sasha Rodoy (using the alias ‘serendipity’). Apparently, Ms Rodoy had experienced complications from laser eye surgery undertaken by one of Optical Express’ competitors, Optimax. She started legal proceedings against Optimax, which were subsequently settled. After discovering that she was not alone in complaining, Rodoy also set up a campaign site called optimaxruinedmylife.co.uk. Visitors to the site were invited to share their experiences. Rodoy has been campaigning for regulation of refractive eye surgery. In November 2013, MP John McDonnell introduced a private members’ bill with this purpose, and his speech referenced Rodoy’s campaign.
The DRS rules are tough on repeat complaints (para 10e of the Policy). Experts have a narrow discretion to re-hear, which are set out in para 10f. These boil down to whether there are new facts which have arisen subsequent to the first complaint. If there no new facts, then are there exceptional circumstances which would justify a rehearing?
In this case, the Expert had little pause in dismissing all but two of the repeat complaints on the basis that they were either not new, or were irrelevant. The first was an allegation that Rodoy was working with a competitor of Optical Express, Optimax, to disrupt its
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