Lack of evidence sinks ANC's domain name fight

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The ANC lost its domain name fight against its former service provider.
The ANC lost its domain name fight against its former service provider.

The limited evidence presented by the African National Congress (ANC) in the fight to retain its domain name, anc.org.za, was its undoing.

This is according to the verdict of an adjudicator appointed by the South African Institute of Intellectual Property Law in the case between the ANC and its former Web site host, Unwembi Communications.

The ANC fell out with Unwembi Communications late last year, amid allegations the ruling party owed the service provider millions in outstanding fees.

At the time, the Cape Town-based Unwembi Communications reportedly claimed it was owed R32.5 million for developing and hosting the party's Web site and membership system.

The ANC uses the Web site to provide information about the history of the party, upcoming events, policy documents, previous and current leader profiles, and branch data.

In September 2018, trying to access the party site via the anc.org.za domain name was futile as citizens were greeted by a grey screen with the message: "This Web site is suspended due to non-payment to the service provider." This then led to the launch of a "newly-revamped" Web site under a new domain, anc1912.org.za, in October.

Although it introduced a new site, the ANC was still fighting to get back the domain name it had been using since 1997.

Last year, both the ANC and Unwembi Communications filed arguments before the adjudicator.

However, last week, the party was dealt a blow when the adjudicator decided to dismiss the claim, declaring the evidence to prove rights to the domain name as "fairly low".

"The complainant has given no evidence of any rights that it has in ANC. It merely made the bald allegation that the African National Congress was formed in 1912 as a liberation movement. No further evidence of its rights to the mark or name ANC was submitted."

Lucien Pierce, partner at Phukubje Pierce Masithela Attorneys, notes the outcome could have been "much better if the ANC was able to show more evidence".

The case, according to Pierce, should have been a claim with good prospects of success for the party, which has a strong and well-known brand.

"There is 107 years of evidence to show the ANC has rights in respect of a name or a mark which is identical or similar to the domain name...but none of this seems to have been presented."

Pierce advises the following steps to avoid losing a domain name:

* Be sure about who is contractually responsible for ensuring the protection of intellectual property, such as domains.

* Ensure a reliable person is allocated the task of monitoring domain registration expiries and timely re-registration.

* Try to register variations of the domain. It helps if it incorporates the trademark; for example, anc.africa.

* Try to avoid a lapse in the domain's registration. The costs of trying to get it back could be high, especially if the person who "grabbed" the domain is elusive.

* Make sure contracts are in place, ensure the domain registration is renewed on time and take rapid action against someone who "grabs" the domain.

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