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Onerous liabilities loom for .africa

Nicola Mawson
By Nicola Mawson, Contributor.
Johannesburg, 17 Apr 2014
New top-level domain portals could cost their owners much more than they expect when they sign up for a new site.
New top-level domain portals could cost their owners much more than they expect when they sign up for a new site.

As the sunrise stage for new top-level domains draws closer, a lawyer has warned the current terms and conditions attached to .co.za portals - which are likely to be carried over to new sites - could leave Web site owners in hot water.

Several new top level domains - including .africa, .capetown, .durban and .joburg - will enter the sunrise phase in June, which will allow trademark holders to pre-emptively protect their intellectual property by registering sites for three months before the general public can jump in.

The sites will be managed by the ZA Central Registry, which administrates the .co.za domains. Vika Mpisane, GM of the ZA Domain Name Authority, says the current terms and conditions of the .co.za domains will be substantially applied to the four new options.

Too wide

However, WebTechLaw director Paul Jacobson says the warranties people agree to when signing up for a .co.za domain are overly onerous and could leave Web site owners with hefty liabilities.

Jacobson says to comply with the warranty, an "exhaustive" search of every single jurisdiction to make sure it is not breached must be done; a task that will become even harder when "tons" of new top-level domains become available.

This is "very, very broad", says Jacobson. "You can't possibly know every brand, company or trading name which you could possibly be stepping on when you register your domain. Trademarks tend to be somewhat geographically and thematically limited, but copyright is pretty universal and 'any intellectual property right' is a really broad catchall."

No fallback

Jacobson adds that under the terms and conditions, the site owner is responsible if a claim is lodged, even if it is not credible. The owner will also have to cover the ZACR's costs and defend it from any claim if the warranty is breached. "The upshot is that you will be required to pay for ZACR's lawyers, upfront."

The problematic warranty

When a site is registered locally, the person doing so has to ensure the portal's name "does not or will not interfere with, nor infringe the right of any third-party in any jurisdiction with respect to trademark, service mark, trade name, company name, close corporation name, copyright or any other intellectual property right".

The "cheap" domain name could suddenly end up costing site owners thousands to defend if there is an intellectual property challenge, says Jacobson. He advises people to research resellers' terms and conditions, and look for a domain that does not have these overly onerous liabilities.

However, Mpisane says such terms and conditions are fairly standard across the sector and apply to .uk sites, for example. He says these are acceptable in the industry and are based on the terms of operation as set by the Internet Corporation for Assigned Names and Numbers, and there is no need for alarm.

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