Unsponsored TLD Agreement: Appendix M (.pro)
30 May 2003
Enforcement of Registration Restrictions
I. UNIFORM DISPUTE RESOLUTION POLICY
1. General Information. All Authorized Registrars will follow the Uniform Domain-Name Dispute-Resolution Policy (the "UDRP") to resolve the types of trademark-based domain-name disputes covered by the UDRP. (As used in this Appendix M, the term "Authorized Registrar" refers to a registrar accredited by ICANN for the .pro TLD that has entered into, and has currently in effect, the Registry-Registrar Agreement (Appendix F).) The UDRP is set forth in documents published by ICANN. The description of the UDRP in this Appendix is not authoritative and is provided for convenience only.
2. Principal Documents. The following documents provide relevant details:
2.1 Uniform Domain Name Dispute Resolution Policy. This policy is followed by all ICANN-Accredited Registrars. It can be found at: http://www.icann.org/dndr/udrp/policy.htm
2.2 Rules for Uniform Domain Name Dispute Resolution Policy. These rules are followed by all dispute-resolution service providers, with supplementation by each provider's supplemental rules. This can be found at: http://www.icann.org/dndr/udrp/uniform-rules.htm
2.3 List of Approved Dispute-Resolution Service Providers. This list can be found at: http://www.icann.org/dndr/udrp/approved-providers.htm
2.4 Information Concerning Approval Process for Dispute-Resolution Service Providers. This information can be found at: http://www.icann.org/dndr/udrp/provider-approval-process.htm
II. QUALIFICATION CHALLENGE POLICY
1.1 General Information. All Authorized Registrars are bound by the "Qualification Challenge Procedures" set forth in this Section II and shall mandate that their customers also be bound by the Qualification Challenge Procedures. The Qualification Challenge Procedures apply to all challenges to (i) domain name and (ii) Standard Defensive Registrations within .pro on the grounds that the registrant does not meet the qualifications as set forth in Appendix L.
A challenge to a domain name or Standard Defensive Registration under the Qualification Challenge Procedures may be brought by any interested third party ("Qualification Challenger") pursuant to the procedures described in Subsection 1.3 ("Qualification Challenge"). In the event that a challenge against a domain name or Standard Defensive Registration is successful (i) the Qualification Challenger may have the registration transferred to himself, herself, or itself upon meeting all Registration Qualifications or (ii) the domain name or Standard Defensive Registration may be subject to cancellation, as described in Appendix L.1.2 Qualification Challenge Providers. After consulting with the Registry Operator, ICANN will from time to time approve qualified dispute resolution providers ("Qualification Challenge Providers") to hear the Qualification Challenges. ICANN will maintain a list of the Qualification Challenge Providers on its website. (See http://www.icann.org/dndrp/proqcp/approved-providers.htm.) The Registry Operator will provide training for Qualification Challenge Providers with regard to eligibility requirements and policies, as set forth in Appendix L. The Advisory Board will assist the Registry Operator to identify and recommend Qualification Challenge Providers and provide policy direction with regard to the Qualification Challenge Providers' training. Information concerning the process for approval of Qualification Challenge Providers will be posted at http://www.icann.org/dndr/proqcp/provider-approval-process.htm.
1.3 Qualification Challenge Procedures. Qualification Challenges shall proceed according to Paragraph 4 of the Qualification Challenge Policy. The initial Qualification Challenge Policy is set forth in Exhibit 3 to this Appendix M and the initial Qualification Challenge Rules are set forth in Exhibit 4 to this Appendix M. The Qualification Challenge Policy and Qualification Challenge Rules may be revised from time to time as set forth in the Policy (see paragraph 10 of the initial Policy) and Rules (see initial Rule 21). The current version of the Qualification Challenge Policy will be posted at http://www.icann.org/dndr/proqcp/policy.htm and the current version of the Qualification Challenge Rules will be posted at http://www.icann.org/dndr/proqcp/uniform-rules.htm.
2. Qualification Challenge Fees. Fees for Qualification Challenges are established by the selected Qualification Challenge Providers according to the Qualification Challenge Rules and the Provider's supplemental rules.
3. Qualification Challenge Timing. Qualification Challenges may be submitted on or after the Sunrise Start Date for the professions-specific second-level domain (PS-SLD) containing the domain name(s) or Defensive Registration(s) involved.
4. Judicial Remedies. A registrant or a Qualification Challenger may invoke any judicial procedures that are available to challenge the decision, but invocation of any such judicial procedures will not affect compliance by the Authorized Registrar or Registry Operator with the Qualification Challenge decision except as provided by paragraph 5(h) of the Qualification Challenge Policy set forth in Exhibit 3 below, absent an order or similar direction from a court of competent jurisdiction. The sponsoring Authorized Registrar and the Registry Operator will comply with applicable orders of courts of competent jurisdiction concerning Qualification Challenges.
5. Registry Operator Participation in Disputes. Registry Operator will not participate in any way in any dispute between a domain name or Standard Defensive Registration holder and any party other than the Registry Operator regarding the registration and use of a domain name or Standard Defensive Registration. Registry Operator shall not be named as a party or otherwise included in any such proceeding. In the event that Registry Operator is named as a party in any such proceeding, Registry Operator reserves the right to raise any and all defenses deemed appropriate, and to take any other action necessary to defend itself.
III. INTELLECTUAL PROPERTY DEFENSIVE REGISTRATION CHALLENGE POLICY
1. General Information.All disputes between a third party and a registrant of an Intellectual Property Defensive Registration concerning whether such registrant meets the Registration Qualifications, as set forth in Appendix L, shall be decided under the Intellectual Property Defensive Registration Challenge Policy for .PRO ("IPDRP"). To invoke the policy, a third party may submit a complaint to an approved dispute-resolution service provider.
2. Principal Documents. The following documents provide details:
2.1 The Intellectual Property Defensive Registration Challenge Policy for .Pro. The IPDRCP is followed by all ICANN-Accredited Registrars with respect to Intellectual Property Defensive Registrations within the .pro TLD. The IPDRCP is attached as Exhibit 1 to this Appendix, and is made a part of the ICANN-Accredited Registrar-registrant agreement.
2.2 Rules for Intellectual Property Defensive Registration Challenges for .PRO. The IPDRCP Rules will be followed by all IPDRCP Providers. Such IPDRCP Providers may supplement these rules, as appropriate. The IPDRCP Rules are attached as Exhibit 2 to this Appendix.
2.3 List of IPDRCP Providers. The then-current list of IPDRCP Providers will be identified on ICANN's web site and will be made available to Registry Operator to post on its web site.
Disclaimer. The provisions of this Registry Agreement (including Appendices J, L, and M) shall not create any actual or potential liability on the part of Registry Operator to any person or entity other than ICANN in connection with any dispute concerning any Registered Name or other Registry Service, including the decision of any dispute resolution proceeding related to any of the foregoing.
Modification. The provisions of this Appendix are subject to change by agreement of the Registry Operator and ICANN.
Exhibit 1: Intellectual Property Defensive Registration Challenge Policy for .PRO
1. Purpose. This Intellectual Property Defensive Registration Challenge Policy (the "Policy") has been adopted by RegistryPro, Inc. ("RegistryPro") and is incorporated by reference into the <.pro> Registration Agreement (the "Registration Agreement") between you (as the "Registrant") and us (as the "Registrar"). The Policy applies to challenges made to intellectual property defensive registrations registered under the .pro top-level domain (including any such registrations that have been converted to domain–name registrations) (collectively, "IP Defensive Registrations"). The Policy sets forth the terms and conditions that will apply in the event of a dispute between you and any party other than RegistryPro (except as provided for in Paragraph 4(m) below) regarding whether your IP Defensive Registration (including the initial data required to be submitted to Registrar in conjunction with such IP Defensive Registration) complies with the conditions set forth in the Registration Agreement for registration of an IP Defensive Registration (the "IP Defensive Registration Conditions").
Proceedings under Paragraph 4 of this Policy will be conducted pursuant to the Rules for Intellectual Property Defensive Registration Challenge Policy for .Pro (the "Rules"), which are available online at <http://www.icann.org/dndr/proipdrcp/rules.htm>. Capitalized terms not otherwise defined in the Policy are defined in the Rules.
2. Registrant's Representations. By applying to register an IP Defensive Registration, you represent and warrant to us and to RegistryPro that: (a) the statements that you made in your Registration Agreement are complete and accurate; (b) the registration of the IP Defensive Registration complies in all respects with the IP Defensive Registration Conditions; (c) to your knowledge, the registration of the IP Defensive Registration will not infringe upon or otherwise violate the rights of any third party; (d) you are not registering the IP Defensive Registration for an unlawful purpose; and (e) you will not knowingly use the IP Defensive Registration in violation of any applicable laws or regulations. It is your responsibility to determine whether your IP Defensive Registration infringes or violates someone else's rights and complies with the terms and conditions of the Registration Agreement.
3. Cancellations, Transfers, and Changes. We will cancel, transfer, or otherwise make changes to a IP Defensive Registration under the following circumstances:
a. subject to the provisions of Paragraph 6, our receipt of written or appropriate electronic instructions from you or your authorized agent to take such action; and/or
b. our receipt of an order from a court or arbitral tribunal, in each case of competent jurisdiction, requiring such action; and/or
c. our receipt of a decision requiring such action in any administrative proceeding to which you were a party and which was conducted under this Policy or a later version of this Policy adopted by RegistryPro; and/or
d.our receipt of any order or decision requiring such action from any other proceeding to which you were a party.
We may also cancel, transfer or otherwise make changes to an IP Defensive Registration in accordance with the terms of the Registration Agreement or other legal requirements.
4. Mandatory Administrative Proceeding. This Paragraph sets forth one type of dispute for which you are required to submit to a mandatory administrative proceeding. These proceedings will be administered by the World Intellectual Property Organization Arbitration and Mediation Center (the "Center"). You are also required to submit to other dispute-resolution policies for some types of disputes not covered by this Policy.
a. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (the "Challenger") or RegistryPro (as set forth in Paragraph 4(m)) asserts to the Center, in compliance with the Rules, that your IP Defensive Registration did not comply with the IP Defensive Registration Conditions. All challenges under this Policy (except for Registry Challenges pursuant to Paragraph 4(m)) must be submitted to the Center no earlier than June 1, 2003 and no later than six months after the date of the IP Defensive Registration (such challenge period is referred to as the "Challenge Period"). Any disputes concerning an IP Defensive Registration that is, or can be, the subject of a challenge or a Registry Challenge under this Policy shall not be the subject of a proceeding under the UDRP.
b. How to Demonstrate Compliance with the IP Defensive Registration Conditions. In order to demonstrate compliance with the IP Defensive Registration Conditions, a Party must submit, as further specified in the Rules, an original or a copy, certified as correct by the issuing trademark authority, of a trademark or service mark certificate establishing that:
(i) at the time of the registration of the IP Defensive Registration, a trademark or service mark was registered in the name of the Party, and was current (non-expired), as evidenced by the date(s) set forth in the certificate itself; and
(ii) the textual or word elements of the trademark or service mark registration are identical to the IP Defensive Registration; and
(iii) the trademark or service mark registration is of national effect; and
(iv) for those IP Defensive Registrations submitted during the Sunrise Registration Period only, the trademark or service mark was registered with the relevant trademark authority prior to September 30, 2002.
c. Multiple Challenges. In the event that one or more challenges are submitted to the Center regarding an IP Defensive Registration that is already the subject of a pending challenge, all such challenges will be queued in accordance with the date and time they were received by the Center. The first challenge to be filed will be granted priority, provided the Center is satisfied that the Challenger concerned paid the Challenger's fee in accordance with the Rules. If a challenge is terminated without a determination by the Center regarding the Respondent's compliance with the IP Defensive Registration Conditions, the Center will proceed with the next challenge it received regarding such IP Defensive Registration.
d. Decision. The challenge will be decided upon by the Center as set out in Subparagraphs (i) to (ii) below. The Center's decision of whether the IP Defensive Registration Conditions are met will be based on an examination of any trademark or service mark certificates submitted as compared with the information contained in the relevant RegistryPro Whois database, and an examination of the validity of such trademark registration using any available electronic databases of current trademark registrations. The Center's decision is of an administrative nature and shall be final. The Center shall not be required to state reasons for its decision.
(i) If the Center finds that you have registered the IP Defensive Registration in compliance with the IP Defensive Registration Conditions, the Center will dismiss the Challenge.
(ii) If the Center is unable to find that you have registered the IP Defensive Registration in compliance with the IP Defensive Registration Conditions, the Center will proceed as follows:
(1) If the Challenger has not requested transfer of the IP Defensive Registration, the Center shall order that the IP Defensive Registration be cancelled.
(2) If the Challenger has requested transfer of the IP Defensive Registration, the Center shall inform RegistryPro accordingly. RegistryPro shall place the IP Defensive Registration on registry lock for at least twenty one (21) days, during which time the Challenger shall have the opportunity to apply to register the corresponding IP Defensive Registration or domain name.
e. Consolidation. A challenge may not relate to more than one IP Defensive Registration. In the event a Challenger submits more than one challenge under this Policy against you, either you or the Challenger may petition the Center to consolidate such disputes. The Center may consolidate before it any or all such disputes in its sole discretion, provided that the disputes being consolidated are governed by this Policy.
f. Fees. In accordance with the Rules, the submission of a challenge under this Policy (subject to any other arrangements that may apply to Registry Challenges pursuant to Paragraph) is subject to the payment of, a Challenger's fee in the amount of USD [500], subject to the provisions of the Rules, Paragraph [13]. Payments are to be made by credit card using the secure online form made available by the Center. If a challenge is submitted but the Challenger's fee is not paid in accordance with the Rules, the challenge will be dismissed on the basis of the Challenger's failure to pay its fee.
g. Our Involvement in Administrative Proceedings. We do not, and will not, participate in the administration or conduct of any proceeding before the Center under this Policy. In addition, we will not be liable as a result of any decisions rendered by the Center.
h. Remedies. The remedies available to a Challenger shall be limited to those set forth in Paragraph 4(e).
i. Notification. The Center shall notify us and RegistryPro of any decision made under this Policy with respect to an IP Defensive Registration you have registered with us in accordance with the Rules. The outcomes of all administrative proceedings under this Policy shall be published in accordance with the Rules.
j. Request for Information. RegistryPro reserves the right to request and verify information regarding compliance with the IP Defensive Registration Conditions directly from any Party at any time.
k. Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 4(a) shall not prevent either you or the Challenger from submitting the dispute to a court of competent jurisdiction for independent resolution.
l. Registry Challenges. RegistryPro reserves the right to initiate challenges in connection with IP Defensive Registrations that RegistryPro reasonably believes did not satisfy the IP Defensive Registration Conditions ("Registry Challenges"). Such Registry Challenges may be administered pursuant to this Policy or other policies and procedures approved by ICANN.
5. Maintaining the Status Quo. Except as may be required by other policies or legal requirements, we will not cancel, transfer, activate, deactivate, or otherwise change the status of any IP Defensive Registration subject to this Policy, except as provided in Paragraph 3 and 4 above and 6 below.
6. Transfers During a Dispute.
a. Transfers of an IP Defensive Registration to a New Holder. You may not transfer your IP Defensive Registration to another holder or delete your IP Defensive Registration (i) before the end of the Registry Challenge Period and (ii) until any challenges brought pursuant to this Policy or Registry Challenges in relation to the IP Defensive Registration have been resolved, except that a transfer may be made to the Challenger as a result of a pending administrative proceeding under this Policy (e.g., in the event of a settlement of the dispute), provided that the Challenger meets all other applicable requirements for registering the domain name or IP Defensive Registration at the time it seeks to register the Challenged Name. Nothing in this paragraph limits our ability to cancel your IP Defensive Registration in accordance with your Registration Agreement.
b. Changing Registrars. You may not transfer your IP Defensive Registration to another registrar until all pending challenges against your IP Defensive Registration pursuant to this Policy and Registry Challenges have been resolved.
7. Policy Modifications. RegistryPro reserves the right to modify this Policy at any time with the permission of ICANN. Any revisions of this Policy will be posted online at http://www.registrypro.pro at least fifteen (15) days prior to its effective date. Unless this Policy has already been invoked by the submission of a challenge to the Center, in which event the version of the Policy in effect at the time it was invoked will apply to you until the dispute is over, all such changes will be binding upon you with respect to any IP Defensive Registration dispute, whether the dispute arose before, on or after the effective date of the change. In the event that you object to a change in this Policy, your sole remedy is to cancel your IP Defensive Registration with us, provided that you will not be entitled to a refund of any fees you paid to us. The revised Policy will apply to you until you cancel your IP Defensive Registration.
Exhibit 2:Rules for Intellectual Property Defensive Registration Challenges for .PRO
Administrative proceedings for the resolution of disputes under the Qualification Challenge Policy adopted by ICANN shall be governed by these Qualification Challenge Rules and also the Supplemental Rules of the Qualification Challenge Provider administering the proceedings, as posted on its site.
1. Definitions. In these Rules:
"Center" refers to the World Intellectual Property Organization Arbitration and Mediation Center.
"Challenged Name" means an IP Defensive Registration.
"Challenger" means a party which is challenging an IP Defensive Registration under the Intellectual Property Defensive Registration Challenge Policy for .PRO.
"ICANN" refers to the Internet Corporation for Assigned Names and Numbers.
"IP Defensive Registration" means an intellectual property defensive registration registered under the .Pro top-level domain either during a Sunrise Registration Period or during the registry live period even if such registrations have been converted to resolving domain names or are not held by the original registrant at the time they are challenged.
"IP Defensive Registration Conditions" refers to the conditions set forth in the Registration Agreement that must be met as a precondition for the registration of an IP Defensive Registration.
"Party" means a Challenger or a Respondent.
"Policy" means the Intellectual Property Defensive Registration Challenge Policy for .PRO that is incorporated by reference and made a part of the Registration Agreement.
"Registrar" means the entity with which the Respondent currently has registered an IP Defensive Registration that is the subject of a challenge.
"Registration Agreement" means the agreement between the Registrar and the Respondent.
"Registry Challenge" refers to a challenge initiated by RegistryPro during or after the conclusion of the IP Defensive Challenge Period in connection with IP Defensive Registrations that RegistryPro reasonably believes did not satisfy the IP Defensive Registration Conditions. Such Registry Challenges may be administered pursuant to this Policy or other policies and procedures approved by ICANN.
"RegistryPro" means RegistryPro, Inc., the registry operator for the .pro top-level domain.
"Respondent" means the holder of an IP Defensive Registration against which a challenge is initiated under the Policy and the Rules.
"Rules" refers to these Rules for Intellectual Property Defensive Registration Challenge Policy for .PRO.
"Sunrise Registration Period" refers to the period during which trademark owners could pre-register IP Defensive Registrations subject to the IP Defensive Registration Conditions.
a. Except as otherwise provided in these Rules, any communication required under these Rules shall be made by electronic mail via the Internet.
b. For the purposes of any communications to the Center, the following addresses should be used:
i. electronic mail: sunrise.pro@wipo.int
ii. facsimile transmission: (+41 22) 740 3700
iii. postal or courier service:
WIPO Arbitration and Mediation Center
34 chemin des Colombettes
1211 Geneva 20
Switzerlandc. All communications shall be made in the language prescribed in Paragraph 6.
d. Either Party may update its contact details by notifying the other Party, the Center, the Registrar, and RegistryPro.
e. Except as otherwise provided in these Rules, all communications provided for under these Rules shall be deemed to have been made:
(i) if via the Internet, on the date that the communication was transmitted, provided that the date of transmission is verifiable; or
(ii) if by postal or courier service, on the date of mailing marked on the receipt; or
(iii) if delivered by facsimile transmission, on the date shown on the confirmation of transmission.
f. Except as otherwise provided in these Rules, all time periods calculated under these Rules shall commence on the earliest date that the communication is deemed to have been made in accordance with Paragraph 2(e).
g. Except as otherwise provided in these Rules, any communication by
(i) the Center, following the commencement of an administrative proceeding pursuant to Paragraph 4(c), to any Party shall be copied to the other Party; and
(ii) a Party shall be copied to the other Party and the Center.
h. It shall be the responsibility of the sender to retain records of the fact and circumstances of sending, which shall be available for inspection by affected parties and for reporting purposes.
i. In the event that a Party sending a communication receives notification of non-delivery of the communication, that Party shall promptly notify the Center of the circumstances of the notification.
j. When a paper submission is to be made to the Center by a Party, it shall be submitted in three (3) sets, including the original of such submission.
a. Any person or entity may initiate an administrative proceeding by submitting a challenge to the Center in accordance with the Policy and Rules.
b. The challenge shall be submitted in electronic form via the Internet using the Online Challenge Form made available by the Center.
(i) Request that the challenge be submitted for decision in accordance with the Policy and Rules and describe why the Challenged Name should be considered subject to the Policy;
(ii) Provide the full name, postal and e-mail addresses, and the telephone and telefax numbers of the Challenger and of any representative authorized to act for the Challenger in the administrative proceeding;
(iii) Provide the full name of the Respondent and, if different from the contact details available in the Whois database for the IP Defensive Registration, all information known to the Challenger regarding how to contact the Respondent or any representative of the Respondent, including contact information based on pre-challenge dealings;
(iv) Specify the IP Defensive Registration that is the subject of the challenge;
(v) Identify the Registrar with whom the Challenged Name is registered at the time the challenge is filed;
(vi) Describe, in accordance with the Policy, the grounds on which the challenge is made including, in particular, why the IP Defensive Registration that is the subject of the dispute should be considered to have been registered in violation of the IP Defensive Registration Conditions, with specific reference to the IP Defensive Registration Conditions:
(1) at the time of the Respondent's registration of the Challenged Name, no current (non-expired) trademark or service mark registration on which the IP Defensive Registration is based was issued in the Respondent's name; or
(2) the Challenged Name is not identical to the textual or word elements of the trademark or service mark registration on which the registration of the Respondent's IP Defensive Registration is based; or
(3) the trademark or service mark registration on which the registration of the Challenged Name is based is not of national effect; or
(4) in the case of an IP Defensive Registration submitted during the Sunrise Registration Period only, the trademark or service mark on which the registration of the Respondent's IP Defensive Registration is based was not registered with the trademark authority with which the mark is registered prior to September 30, 2002.
The above description should not exceed 2,000 words;
(vii)Specify, in accordance with the Policy, the remedies sought, i.e. transfer or cancellation of the Challenged Name;
(viii)Identify any other proceedings that have been commenced or terminated in connection with or relating to the Challenged Name that is the subject of the challenge;
(ix) Include the following statement (for Challengers seeking transfer of the IP Defensive Registration):
"Challenger certifies that the trademark or service mark registration forming the basis of this challenge and potential registration of the Challenged Name in question was current (non-expired) at the time of the registration of the IP Defensive Registration, and, in the case of IP Defensive Registrations made during the Sunrise Period, was already registered with the trademark authority with which the mark is registered prior to September 30, 2002";
(x) Include the following statement (for all Challengers):
"Challenger agrees that its claims and remedies concerning the registration of the defensive registration or domain name, the dispute, or the dispute's resolution shall be solely against the Respondent and waives all such claims and remedies against (a) the Center, (b) the Registrar, (c) RegistryPro, and (d) ICANN, as well as their directors, officers, employees, and agents.
Challenger certifies that the information contained in this challenge is to the best of Challenger's knowledge complete and accurate, that this challenge is not being presented for any improper purpose, such as to harass, and that the assertions in this challenge are warranted under the Intellectual Property Defensive Registration Challenge Policy for .PRO, the Rules for Intellectual Property Defensive Registration Challenge Policy for .PRO, and under applicable law, as it now exists or as it may be extended by good-faith and reasonable argument."
(xi) Specify, on the Online Challenger Payment Form made available by the Center, the credit card (American Express, Visa, or MasterCard), together with the name of the cardholder as it appears on the card, the card number and the card expiration date for purposes of payment of the Challenger's fee in accordance with Paragraph 13(a).
d. The challenge may not relate to more than one IP Defensive Registration.
e. Challengers seeking transfer of the Challenged Name shall submit to the Center the originals or copies, certified by the issuing trademark authority, of any trademark or service mark certificates in Challenger's name and meeting the IP Defensive Registration Conditions within thirty (30) days of the commencement of the administrative proceeding.
a. The Center shall review the challenge for formal compliance with the Policy and the Rules. If the challenge is found to be in compliance with the Policy and the Rules and the Center is satisfied that the Challenger's fee has been paid in accordance with Paragraph 13(a), the Center shall notify the Respondent of the challenge by sending it to the e-mail addresses and telefax numbers of the registrant and the administrative contact for the IP Defensive Registration, as shown in the Whois database at the time of the notification of the challenge by the Center to the Respondent. In addition, the Center shall send notice of the challenge to the e-mail addresses and telefax numbers of the Respondent, or of any representative of the Respondent, as provided by the Challenger in accordance with Paragraph 3(c)(iii).
b. If the Center finds the challenge to be formally deficient, it shall notify the Challenger of the nature of the deficiencies identified. The Challenger shall have ten (10) days after such notification within which to correct any such deficiencies, after which the administrative proceeding will be deemed terminated without prejudice to the submission of another challenge by the Challenger.
c. The date of commencement of the administrative proceeding shall be the date on which the Center notifies the Respondent of the challenge.
d. The Center shall notify the Challenger, the Respondent, the Registrar, and RegistryPro of the date of commencement of the administrative proceeding.
e. If the Challenger fails to remedy any deficiencies identified by the Center within the ten (10) day time period provided for in Paragraph 4(b), the Center shall notify the Challenger, the Respondent, the Registrar, and RegistryPro of the deemed termination of the challenge, and the fee of USD 500 paid by the Challenger pursuant to Paragraph 13(a) of the Rules shall be deemed forfeited.
a. Within sixty (60) days after the date of commencement of the administrative proceeding, the Respondent shall submit a response to the Center.
b. The response shall be submitted in hard copy (with annexes) by postal or courier service (postage pre-paid and return receipt requested) and in electronic form (without annexes) via the Internet using the Online Response Form made available by the Center.
(i) Annex the originals or copies, certified by the trademark authority with which the mark is registered, of any trademark or service mark certificates required to be submitted by the Respondent under Paragraph 4(c) of the Policy;
(ii) Respond specifically to the statements and allegations contained in the challenge and include any and all bases for the Respondent to retain registration of the disputed IP Defensive Registration with specific reference to the IP Defensive Registration Conditions. Such description should not exceed 2,000 words;
(iii) Provide the name, postal and e-mail addresses, and the telephone and telefax numbers of the Respondent and of any representative authorized to act for the Respondent in the administrative proceeding;
(iv)) Identify any other proceedings that have been commenced or terminated in connection with or relating to the IP Defensive Registration that is the subject of the challenge;
(v) Include the following statement:
"Respondent certifies that the trademark or service mark registration forming the basis for the registration of the Challenged Name was current (non-expired) at the time of the registration of the IP Defensive Registration, and, in the case of IP Defensive Registrations made during the Sunrise Period, was already registered with the trademark authority with which the mark is registered prior to September 30, 2002";
(vi) Include the following statement followed by the signature of the Respondent or its authorized representative:
"Respondent certifies that the information contained in this response is to the best of Respondent's knowledge complete and accurate, that this response is not being presented for any improper purpose and that the assertions in this response are warranted under the Intellectual Property Defensive Registration Challenge Policy for .PRO, the Rules for Intellectual Property Defensive Registration Challenge Policy for .PRO, and under applicable law, as it now exists or as it may be extended by good-faith and reasonable argument."
d. At the written request of the Respondent, the Center may, in exceptional cases, extend, in writing, the period of time for filing the response.
a. Unless otherwise agreed by the Center in exceptional circumstances, the language of the administrative proceeding shall be English.
b. Any trademark or service mark certificates in a language other than English, submitted by the Challenger in accordance with Paragraph 3(e) or the Respondent in accordance with Paragraph 5(d)(i), must be accompanied by a certified translation into English.
Unless otherwise requested or agreed by the Center in exceptional circumstances, no further statements or documents from either of the Parties are to be submitted.
There shall be no in-person hearings.
a. In the event that a Respondent does not comply with any of the time periods established by the Rules or the Center, the Center, unless it finds exceptional circumstances apply, shall proceed to a decision on the challenge.
b. If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Center, the Center may draw such inferences therefrom and may undertake such procedural steps as it considers appropriate.
a. The Center's decision on whether the IP Defensive Registration Conditions are met will be based on an examination of any trademark or service mark certificates submitted as compared with the information contained in the relevant RegistryPro Whois database, and an examination of the validity of such trademark registration using any available electronic databases of current trademark registrations. The Center's decision is of an administrative nature and shall be final. The Center shall not be required to state reasons for its decision.
b. The Center will use reasonable efforts to decide upon a challenge within twenty (20) days (as observed at the Center's place of business) of the receipt of all submissions to be made under the Policy and the Rules or of the expiry of the deadline for such submissions. The Center will also use reasonable efforts to decide any Registry Challenge as soon as possible under the circumstances.
c. The Center, in its sole discretion, may, prior to rendering the decision, consult relevant intellectual property offices in the context of reaching its determination.
a. The Center shall communicate the decision to each Party, the Registrar, and RegistryPro. In cases where the decision provides for cancellation of the Challenged Name, the concerned Registrar shall immediately communicate to each Party, the Center and RegistryPro the date for the implementation of the decision in accordance with the Policy.
b. If the Challenger has requested a transfer of the Challenged Name in accordance with Paragraph 4 of the Policy, the Registry or Registrar shall provide the Challenger with an authorization code which will allow the Challenger to register a domain name or IP Defensive Registration corresponding to the Challenged Name and to update all Challenger Whois information, at the Registrar of its choice, within 21 days of the date on which the notification of the authorization is sent to the Challenger, provided that the Challenger meets all other applicable requirements for registering the domain name or IP Defensive Registration.
c. The Center shall publish the outcome of the case together with the names of the Challenger and the Respondent on a publicly accessible web site.
12. Termination of Administrative Proceeding
a. If the Challenger notifies the Center that the Parties have agreed on a settlement, the Center may suspend or terminate the administrative proceeding, subject to any conditions that may apply under Paragraph 6(a) of the Policy. Such notification must be submitted in hard copy and signed by the Challenger.
b. If it becomes unnecessary or impossible to continue the administrative proceeding for any other reason, the Center shall terminate the administrative proceeding.
c. If the Challenger notifies the Center of its intention to withdraw the challenge, the Center shall terminate the administrative proceeding. Such notification must be submitted in hard copy and signed by the Challenger.
d. In case of a termination of the administrative proceeding in accordance with subparagraph (a) or (b), any fees paid by the Parties in accordance with Paragraph 13 shall be deemed forfeited. In case of a termination of the administrative proceeding in accordance with subparagraph (c), the Challenger's fees shall be deemed forfeited.
a. The filing of a challenge is subject to the payment of a Challenger's fee in the amount of USD 500. This fee is to be paid by credit card, via the Online Challenger Payment Form, at the time of the submission of the challenge in accordance with Paragraph 3(c)(xi). If the Center is not satisfied that the Challenger's fee has been paid within 15 days of the filing of the challenge, the Center will dismiss the challenge on the basis of the Challenger's failure to pay the Challenger's fee. Other arrangements may apply to the submission of Registry Challenges.
b. Under no other circumstances will a Challenger's fee be reimbursed by the Center.
The Center and any intellectual property office consulted by the Center shall not be liable to a Party for any act or omission in connection with any administrative proceeding under the Policy and the Rules.
The version of these Rules that are in effect at the time of the submission of the challenge to the Center shall apply to the administrative proceeding commenced thereby. RegistryPro reserves the right to modify the Rules at any time.
Exhibit 3: Qualification Challenge Policy
This Qualification Challenge Policy is to be incorporated in each Registration Agreement between a sponsoring Authorized Registrar (the "Registrar") and the registrant (the "Registrant") of every domain name and Standard Defensive Registration in the .pro top-level domain.
1. Purpose. This Qualification Challenge Policy (the "Qualification Challenge Policy") has been adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") and is incorporated by reference into the Registration Agreement. The Qualification Challenge Policy sets forth the terms, conditions, procedures, and schedules for resolving third-party challenges (i.e. challenges not by the Registry Operator or Registrar) to the registration of Registered Items, based on failure of a Registered Item holder to meet the requirements for registration of a Registered Item as set forth in Appendix L. The proceedings under Paragraph 4 of this Qualification Challenge Policy will be conducted according to the Rules for the Qualification Challenge Policy (the "Qualification Challenge Rules"), which are available at <http://www.icann.org/dndr/proqcp/uniform-rules.htm>, and the supplemental rules of the administrative dispute-resolution provider (the "Qualification Challenge Provider") that handles the dispute under Paragraphs 5(a) and 5(c). Capitalized terms not otherwise defined in the Policy are defined in the Rules. This Qualification Challenge Policy is in addition to the Uniform Domain Name Dispute Resolution Policy ("UDRP"), posted at <http://www.icann.org/dndr/udrp/policy.htm>, and the Intellectual Property Defensive Resolution Policy ("IPDRP"), posted at <http://www.icann.org/dndr/prosdrp/policy.htm>, which also apply to disputes in connection with a Registered Item.
2. Registrant's Representations. By applying to register a Registered Item, or by asking Registrar to maintain or renew a Registered Item, Registrant hereby represents and warrants to Registrar that, to his, her, or its knowledge, the registration of Registrant's Registered Item conforms to the Registration Requirements. It is Registrant's responsibility to determine whether his, her, or its Registered Item meet these Registration Requirements.
3. Cancellations, Transfers, and Changes. In addition to the circumstances described in Paragraph 3 of the UDRP, Registrar or Registry Operator will cancel, transfer, or otherwise make changes to a Registered Item after Registrar's receipt of a decision of an Administrative Panel requiring such action in any administrative proceeding to which Registrant was a party and which was conducted under this Qualification Challenge Policy or a later version of this Qualification Challenge Policy adopted by ICANN. (See Paragraphs 5(f) and 5(h) below.) (Regarding cancellations, transfers, and other changes pursuant to a judicial instruction, see Paragraph 3 of the UDRP.) Registrar or Registry Operator may also cancel, transfer, or otherwise make changes to a Registered Item registration in accordance with the terms of Registrant's Registration Agreement, ICANN-approved policies, or other legal requirements.
4. Mandatory Administrative Proceeding. This paragraph sets forth the types of disputes for which a Registrant is required to submit to a mandatory administrative proceeding under this Qualification Challenge Policy. These proceedings will be conducted before a Qualification Challenge Provider.
a. Applicable Disputes. Registrant is required to submit to a mandatory administrative proceeding in the event that a third party (a "Qualification Challenger") asserts to the applicable Qualification Challenge Provider, in compliance with the Qualification Challenge Rules. That is, for challenges to a Registered Item, the Registered Item does not meet the Registered Requirements.
To invoke a Qualification Challenge, the Qualification Challenger must submit a complaint in compliance with the Qualification Challenge Rules.
b. Evidence of Registration in Violation of the Qualification Requirements. For the purposes of Paragraph 4(a), if the Panel finds that the Registrant:
(i) does not comply with the Registration Requirements described in Appendix L;
(ii) has not provided sufficient evidence of compliance with such Registration Requirements; or
(iii) is no longer in good standing or licensed in Registrant's designated profession and in the designated jurisdiction;
then such finding shall be evidence that Registrant's Registered Item does not meet the Registration Requirements. If the Panel finds that Registrant's Registered Item does not meet the Registration Requirements, the Panel shall exercise the remedy set forth in Paragraph 5(f).
c. Responding to a Complaint. When Registrant receives a complaint, Registrant should refer to Paragraph 5 of the Qualification Challenge Rules in determining how to prepare the response.
a. Selection of Provider. The Qualification Challenger shall select an authorized Qualification Challenge Provider from among those on the list of Qualification Challenge Providers available at <http://www.icann.org/dndr/proqcp/approved-providers.htm> by submitting the complaint to that Qualification Challenge Provider. The selected Qualification Challenge Provider will administer the proceeding, except in cases of consolidation as described in Paragraph 5(c). Certain Qualification Challenge Providers may be authorized to offer Administrative Panels for disputes involving only one or more professions served by the .pro TLD or only certain countries or Licensing Jurisdictions (as defined in Appendix L).
b. Initiation of Proceeding and Process and Appointment of Administrative Panel. The Qualification Challenge Rules state the process for initiating and conducting a proceeding and for appointing the panel that will decide the dispute (the "Administrative Panel").
c. Consolidation. In the event of multiple disputes between a Registrant and a Qualification Challenger, either the Registrant or the Qualification Challenger may petition to consolidate the disputes before a single Administrative Panel. This petition shall be made to the first Administrative Panel appointed to hear a pending dispute between the parties. This Administrative Panel may consolidate before it any or all such disputes in its sole discretion, provided that the disputes being consolidated are governed by this Qualification Challenge Policy or a later version of this Qualification Challenge Policy adopted by ICANN.
d. Fees. All fees charged by a Qualification Challenge Provider in connection with any dispute before an Administrative Panel shall be paid in accordance with Paragraph 19 of the Qualification Challenge Rules.
e. Registrar's or Registry Operator's Involvement in Qualification Challenge Proceedings. Neither the Registrar nor the Registry Operator participates or will participate in the administration or conduct of any proceeding before an Administrative Panel. In addition, neither the Registrar nor the Registry Operator is or will be liable as a result of any decisions rendered by the Administrative Panel. Upon receiving notice from a Qualification Challenge Provider of the date of commencement of a Qualification Challenge Proceeding (see Paragraph 4(d) of the Qualification Challenge Rules), the Registrar(s) sponsoring any names involved in the proceeding will place the Registered Item(s) involved on Registrar Lock (whereby such Registered Item(s) cannot be transferred to another holder or another registrar during the course of Qualification Challenge Proceeding) and will notify the Registry Operator, in a manner it specifies, that they have done so. The sponsoring Authorized Registrar will maintain the Registered Item(s) on Registrar Lock during the pendency of the Qualification Challenge Proceeding, until released according to Paragraph 5(h). The Registry Operator and the sponsoring Registrar will comply with any panel decision in the Qualification Challenge and make all appropriate changes to the status of the Registered Item registration(s) in their Whois databases.
f. Remedy. The remedy available to a Qualification Challenger pursuant to any proceeding before an Administrative Panel shall be limited to a decision requiring the cancellation of Registrant's registration of the Registered Item(s) or requesting a transfer of the Registered Item. If the Challenger has requested transfer of the Registered Item, the Panel shall inform RegistryPro accordingly. RegistryPro shall place the domain name on registry lock for at least twenty one (21) days, during which time the Qualification Challenger shall have the opportunity to apply to register the corresponding domain name.
g. Notification and Publication. The Qualification Challenge Provider shall promptly notify the Registrar and the Registry Operator of any decision made by an Administrative Panel. All decisions under this Qualification Challenge Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.
h. Release of Registrar Lock. If the Qualfication Challenger has not requested transfer of the Registered Item and the Administrative Panel decides that Registrant's registration of a Registered Item should be canceled, Registrar will wait twenty-one (21) calendar days (as observed in the location of Registrar's principal office) after the Registrar and the Registry Operator are informed by the applicable Qualification Challenge Provider of the Administrative Panel's decision before implementing that decision. Registrar will then implement the decision by notifying Registry Operator, in a manner specified by Registry Operator, that Registrant's registration of the Registered Item will be cancelled. unless Registrar has received from Registrant during that twenty-one (21) calendar day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that Registrant has commenced a lawsuit against the Qualification Challenger in a jurisdiction to which the Qualification Challenger has submitted under Paragraph 3(b)(xiii) of the Qualification Challenge Rules. (In general, that jurisdiction is either the location of Registrar's principal office; New York, U.S.A.; or of Registrant's address as shown in the registry Whois database. See the definition of "Mutual Jurisdiction" in Paragraph 1, as well as Paragraph 3(b)(xiii), of the Qualification Challenge Rules for details.) If Registrar receives such documentation within the twenty-one calendar day period, Registrar will not implement the Administrative Panel's decision or take any further action, until Registrar receives (i) evidence satisfactory to Registrar of an agreed resolution between the parties; (ii) evidence satisfactory to Registrar that Registrant's lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing Registrant's lawsuit or finding that Registrant does not have the right to maintain the registration of Registrant's Registered Item.
i. Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either the Registrant or the Qualification Challenger from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded.
6. All Other Disputes and Litigation. All other disputes between the Registrant and any party other than Registrar or Registry Operator regarding Registrant's Registered Item that are not brought pursuant to the mandatory administrative proceeding provisions of Paragraph 4 shall be resolved between Registrant and such other party through any court, arbitration, or other proceeding that may be available.
7. Registrar's and Registry Operator's Involvement in Disputes. Neither the Registrar nor the Registry Operator will participate in any way in any dispute between Registrant and any party other than the Registrar or the Registry Operator regarding the registration and use of Registrant's Registered Item. Registrant shall not name Registrar as a party or otherwise include Registrar in any such proceeding. In the event that Registrar or Registry Operator is named as a party in any such proceeding, Registrar and Registry Operator reserve the right to raise any and all defenses deemed appropriate, and to take any other action necessary to defend themselves.
8. Maintaining the Status Quo. Registrar will not cancel, transfer, activate, deactivate, or otherwise change the status of any Registered Item under this Qualification Challenge Policy except as provided in Paragraph 3 and 5 above.
9. Transfers During a Dispute.
a. Transfers of a Registered Item to a New Holder. Registrant may not transfer his, her, or its Registered Item to another holder (i) during a pending administrative proceeding brought pursuant to this Qualification Challenge Policy or for a period of twenty-one (21) days (as observed in the location of Registrar's principal place of business) after such proceeding is concluded; or (ii) during a pending court proceeding or arbitration commenced regarding Registrant's compliance with the Qualification Requirements. Registrar reserves the right to cancel any transfer of a Registered Item to another holder that is made in violation of this subparagraph.
b. Changing Registrars. Registrant may not transfer the sponsorship of his, her, or its Registered Item to another registrar during a pending administrative proceeding brought pursuant to Paragraph 4 or for a period of twenty-one (21) days (as observed in the location of Registrar's principal place of business) after such proceeding is concluded. Registrant may transfer administration of his, her, or its Registered Item to another registrar during a pending court action or arbitration, provided that Registered Item shall continue to be subject to the proceedings commenced against Registrant in accordance with the terms of this Qualification Challenge Policy.
10. Policy Modifications. Registrar reserves the right to modify this Qualification Challenge Policy at any time with the permission of ICANN and Registry Operator. Registrar will post its revised Qualification Challenge Policy at <URL to be supplied by Registrar> at least thirty calendar days before it becomes effective. Unless this Qualification Challenge Policy has already been invoked by the submission of a complaint to a Qualification Challenge Provider, in which event the version of the Qualification Challenge Policy in effect at the time it was invoked will apply until the dispute is over, all such changes will be binding with respect to any Registered Item dispute, whether the dispute arose before, on or after the effective date of the change. In the event that Registrant objects to a change in this Qualification Challenge Policy, the sole remedy is to cancel his, her, or its Registered Item, provided that Registrant will not be entitled to a refund of any fees paid to Registrar. The revised Qualification Challenge Policy will apply until cancellation of a Registered Item.
Exhibit 4: Qualification Challenge Rules
These Qualification Challenge Rules apply uniformly to Qualification Challenge Policy proceedings administered by all approved Providers.
Administrative proceedings for the resolution of disputes under the Qualification Challenge Policy adopted by ICANN shall be governed by these Qualification Challenge Rules and also the Supplemental Rules of the Qualification Challenge Provider administering the proceedings, as posted on its site.
1. Definitions. In these Rules:
"Registered Item" means a Registered Name or a Standard Defensive Registration as defined in the Registry Agreement between the Registry Operator and ICANN.
"Qualification Challenger" means the party initiating a complaint concerning a Registered Item.
"Registration Requirements" means the requirements for registration of a Registered Item as established in or according to Appendix L to the Registry Agreement between ICANN and the Registry Operator.
"ICANN" refers to the Internet Corporation for Assigned Names and Numbers.
"Mutual Jurisdiction" means a court jurisdiction at the location of either (a) the principal office of the Registrar, (b) New York, U.S.A., or (c) the Registered Item holder's address as shown for the registration of the Registered Item in Registry Operator's Whois database at the time the complaint is submitted to the Qualification Challenge Provider.
"Panel" means an administrative panel appointed by a Qualification Challenge Provider to decide a complaint concerning a Registered Item.
"Panelist" means an individual appointed by a Provider to be a member of a Panel.
"Party" means a Qualification Challenger or a Respondent.
"Qualification Challenge Policy" means the Qualification Challenge Policy that is incorporated by reference and made a part of the Registration Agreement.
"Qualification Challenge Provider" means a dispute-resolution service provider that is approved by ICANN upon consultation with Registry Operator. A list of such Providers appears at <http://www.icann.org/dndr/proqcp/approved-providers.htm>.
"Standard Defensive Registration" has the meaning set forth in section 2.5 of Appendix L of the Registry Agreement between ICANN and the Registry Operator.
"Registrar" means the entity with which the Respondent has registered a Registered Item that is the subject of a complaint.
"Registration Agreement" means the agreement between a Registrar and a Registered Item holder.
"Registry Operator" means the entity that, pursuant to a Registry Agreement with ICANN, operates the registry for the .pro TLD.
"Respondent" means the holder of a Registered Item against which a complaint is initiated.
"Reverse Registered Item Hijacking" means using the Qualification Challenge Policy in bad faith to attempt to deprive a Registered Item holder of a Registered Item.
"Supplemental Rules" means the rules adopted by the Qualification Challenge Provider and approved by ICANN administering a proceeding to supplement these Qualification Challenge Rules. Supplemental Rules shall not be inconsistent with the Qualification Challenge Policy or these Qualification Challenge Rules and shall cover such topics as fees, word and page limits and guidelines, the means for communicating with the Qualification Challenge Provider and the Panel, and the form of cover sheets.
a. When forwarding a complaint to the Respondent, it shall be the Qualification Challenge Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility:
(i) sending the complaint to all postal-mail and facsimile addresses (A) shown in the Registered Item data in Registry Operator's Whois database for the registration holder, the technical contact, and the administrative contact and (B) supplied by Registrar to the Provider for the registration's billing contact; and
(ii) sending the complaint in electronic form (including annexes to the extent available in that form) by e-mail to:
(1) the e-mail addresses for the registration holder and the technical, administrative, and billing contacts of the Registered Item;
(2) postmaster@<the contested domain name>; and
(3) if the domain name (or "www." followed by the domain name) resolves to an active web page (other than a generic page which the Qualification Challenge Provider concludes is maintained by a registrar or ISP for parking domain names registered by multiple domain name holders), any e-mail address shown or e-mail links on that web page.
(iii) sending the complaint to any address the Respondent has notified the Qualification Challenge Provider it prefers and, to the extent practicable, to all other addresses provided to such Provider by Qualification Challenger under Paragraph 3(b)(v).
b. Except as provided in Paragraph 2(a), any written communication to the Qualification Challenger or Respondent provided for under these Qualification Challenge Rules shall be made by the preferred means stated by the Qualification Challenger or Respondent, respectively (see Paragraphs 3(b)(iii) and 5(b)(iii)), or in the absence of such specification
(i) by telecopy or facsimile transmission, with a confirmation of transmission; or
(ii) by postal or courier service, postage pre-paid and return receipt requested; or
(iii) electronically via the Internet, provided a record of its transmission is available.
c. Any communication to the Qualification Challenge Provider or the Panel shall be made by the means and in the manner (including number of copies) stated in the Provider's Supplemental Rules.
d. Communications shall be made in the language prescribed in Paragraph 11. E-mail communications should, if practicable, be sent in plaintext.
e. Either Party may update its contact details by notifying the Qualification Challenge Provider and the Registrar.
f. Except as otherwise provided in these Qualification Challenge Rules, or decided by a Panel, all communications provided for under these Qualification Challenge Rules shall be deemed to have been made:
(i) if delivered by telecopy or facsimile transmission, on the date shown on the confirmation of transmission; or
(ii) if by postal or courier service, on the date marked on the receipt; or
(iii) if via the Internet, on the date that the communication was transmitted, provided that the date of transmission is verifiable.
g. Except as otherwise provided in these Qualification Challenge Rules, all time periods calculated under these Rules that are to begin when a communication is made shall begin to run on the earliest date that the communication is deemed to have been made in accordance with Paragraph 2(f).
(i) a Panel to any Party shall be copied to the Qualification Challenge Provider and to the other Party;
(ii) the Qualification Challenge Provider to any Party shall be copied to the other Party; and
(iii) a Party shall be copied to the other Party, the Panel and the Qualification Challenge Provider, as the case may be.
i. It shall be the responsibility of the sender to retain records of the fact and circumstances of sending, which shall be available for inspection by affected parties and for reporting purposes.
j. In the event a Party sending a communication receives notification of non-delivery of the communication, the Party shall promptly notify the Panel (or, if no Panel is yet appointed, the Qualification Challenge Provider) of the circumstances of the notification. Further proceedings concerning the communication and any response shall be as directed by the Panel (or the Qualification Challenge Provider).
a. Any person or entity may initiate an administrative proceeding by submitting a complaint in accordance with the Qualification Challenge Policy and these Qualification Challenge Rules to any Qualification Challenge Provider. (Due to capacity constraints or for other reasons, a Qualification Challenge Provider's ability to accept complaints may be suspended at times. In that event, the Provider shall refuse the submission. The person or entity may submit the complaint to another Qualification Challenge Provider.)
b. The complaint shall be submitted in hard copy and (except to the extent not available for annexes) in electronic form and shall:
(i) Request that the complaint be submitted for decision in accordance with the Qualification Challenge Policy and these Qualification Challenge Rules;
(ii) Provide the name, postal and e-mail addresses, and the telephone and telefax numbers of the Qualification Challenger and of any representative authorized to act for the Qualification Challenger in the administrative proceeding;
(iii) Specify a preferred method for communications directed to the Qualification Challenger in the administrative proceeding (including person to be contacted, medium, and address information) for each of (A) electronic-only material and (B) material including hard copy;
(iv) Designate whether Qualification Challenger elects to have the dispute decided by a single-member or a three-member Panel and, in the event Qualification Challenger elects a three-member Panel, provide the names and contact details of three candidates to serve as one of the Panelists (these candidates may be drawn from any Qualification Challenge Provider's list of panelists);
(v) Provide the name of the Respondent and all information (including any postal and e-mail addresses and telephone and telefax numbers) known to Qualification Challenger regarding how to contact Respondent or any representative of Respondent, including contact information based on pre-complaint dealings, in sufficient detail to allow the Qualification Challenge Provider to send the complaint as described in Paragraph 2(a);
(vi) Specify the Registered Item that is the subject of the complaint;
(vii) Identify the Registrar with whom the Registered Item is registered at the time the complaint is filed;
(viii) Specify the Registered Item on which the complaint is based;
(ix) Identify the basis of the challenge, including a description of the manner in which the Registered Item does not satisfy the Registration Requirements. (The description should discuss any aspects of the Qualification Challenge Policy that are applicable and shall comply with any word or page limit set forth in the Qualification Challenge Provider's Supplemental Rules)
(x) Specify, in accordance with the Qualification Challenge Policy, the remedies sought;
(xi) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to the Registered Item that is the subject of the complaint;
(xii) State that a copy of the complaint, together with the cover sheet as prescribed by the Qualification Challenge Provider's Supplemental Rules, has been sent or transmitted to the Respondent, in accordance with Paragraph 2(b);
(xiii) State that Qualification Challenger will submit, with respect to any challenges to a decision in the administrative proceeding canceling or transferring the Registered Item, to the jurisdiction of the courts in at least one specified Mutual Jurisdiction;
(xiv) Conclude with the following statement followed by the signature of the Qualification Challenger or its authorized representative:
"Qualification Challenger agrees that its claims and remedies concerning the registration of the Registered Item or the dispute's resolution shall be solely against the Respondent and waives all such claims and remedies against (a) the Qualification Challenge Provider and Panelist(s), except in the case of deliberate wrongdoing, (b) the Registrar, (c) the Registry Operator, and (d) ICANN, as well as their directors, officers, employees, and agents."
"Qualification Challenger certifies that the information contained in this Complaint is to the best of Qualification Challenger's knowledge complete and accurate, that this complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this complaint are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument."; and
(xv) Annex any documentary or other evidence, including a copy of the Qualification Challenge Policy applicable to the Registered Item in dispute and any evidence of the Qualification Challenger's qualification to register the Registered Item under the Qualification Requirements, upon which the complaint relies, together with a schedule indexing such evidence.
c. The complaint may relate to more than one Registered Item, provided that the Registered Items are registered by the same holder.
a. The Qualification Challenge Provider shall review the complaint for administrative compliance with the Qualification Challenge Policy and these Qualification Challenge Rules and, if in compliance, shall forward the complaint (together with the explanatory cover sheet prescribed by the Qualification Challenge Provider's Supplemental Rules) to the Respondent, in the manner prescribed by Paragraph 2(a), within five calendar days following receipt of the fees to be paid by the Qualification Challenger in accordance with Paragraph 19.
b. If the Qualification Challenge Provider finds the complaint to be administratively deficient, it shall promptly notify the Qualification Challenger and the Respondent of the nature of the deficiencies identified. The Qualification Challenger shall have five (5) calendar days within which to correct any such deficiencies, after which the administrative proceeding will be deemed withdrawn without prejudice to submission of a different complaint by Qualification Challenger.
c. The date of commencement of the administrative proceeding shall be the date on which the Provider completes its responsibilities under Paragraph 2(a) in connection with forwarding the Complaint to the Respondent.
d. The Qualification Challenge Provider shall immediately (and in no event later than within three calendar days) notify the Qualification Challenger, the Respondent, the concerned Registrar(s), the Registry Operator, and ICANN of the date of commencement of the administrative proceeding. The Registrar shall place the Registered Item on Registrar Lock (whereby such Registered Item cannot be transferred to another holder or another registrar during the course of these proceedings). Registrar shall notify Registry Operator immediately (and in no event later than within three (3) calendar days) upon executing Registrar Lock.
a. Within twenty-one (21) calendar days after the date of commencement of the administrative proceeding, the Respondent shall submit a response to the Qualification Challenge Provider.
b. The response shall be submitted in hard copy and (except to the extent not available for annexes) in electronic form and shall:
(i) Provide evidence of the Respondent's compliance with the Registration Requirements, including:
Continued good standing or licensure in the profession corresponding to the PS-SLD in question and Licensing Jurisdiction in which the Registrant claimed to be licensed or accredited to provide professional services;
(These portions of the response shall comply with any word or page limit set forth in the Provider's Supplemental Rules)
(ii) Provide the name, postal and e-mail addresses, and the telephone and telefax numbers of the Respondent and of any representative authorized to act for the Respondent in the administrative proceeding;
(iii) Specify a preferred method for communications directed to the Respondent in the administrative proceeding (including person to be contacted, medium, and address information) for each of (A) electronic-only material and (B) material including hard copy;
(iv) If Qualification Challenger has elected a single-member panel in the Complaint (see Paragraph 3(b)(iv)), state whether Respondent elects instead to have the dispute decided by a three-member panel;
(v) If either Qualification Challenger or Respondent elects a three-member Panel, provide the names and contact details of three candidates to serve as one of the Panelists (these candidates may be drawn from any Qualification Challenge Provider's list of panelists);
(vi) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to any of the Registered Item(s) that are the subject of the complaint;
(vii) State that a copy of the response has been sent or transmitted to the Qualification Challenger, in accordance with Paragraph 2(b); and
(viii) Conclude with the following statement followed by the signature of the Respondent or its authorized representative:
"Respondent certifies that the information contained in this Response is to the best of Respondent's knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument."; and
(ix) Annex any documentary or other evidence upon which the Respondent relies, together with a schedule indexing such documents.
c. If Qualification Challenger has elected to have the dispute decided by a single-member Panel and Respondent elects a three-member Panel, Respondent shall be required to pay one-half of the applicable fee for a three-member Panel as set forth in the Provider's Supplemental Rules. This payment shall be made together with the submission of the response to the Qualification Challenge Provider. In the event that the required payment is not made, the dispute shall be decided by a single-member Panel.
d. At the request of the Respondent, the Qualification Challenge Provider may, in exceptional cases, extend the period of time for the filing of the response. The period may also be extended by written stipulation between the Parties, provided the stipulation is approved by the Qualification Challenge Provider.
e. If a Respondent does not submit a response, in the absence of exceptional circumstances, the Qualification Challenge Panel shall decide the dispute based upon the complaint.
6. Appointment of the Panel and Timing of Decision.
a. Each Qualification Challenge Provider shall maintain and publish a publicly available list of any professions, countries or languages for which they are able to provide panelists and hear disputes.
b. If neither the Qualification Challenger nor the Respondent has elected a three-member Panel (Paragraphs 3(b)(iv) and 5(b)(iv)), the Qualification Challenge Provider shall appoint, within five calendar days following receipt of the response by the Qualification Challenge Provider, or the lapse of the time period for the submission thereof, a single Panelist from its list of panelists.
c. If either the Qualification Challenger or the Respondent elects to have the dispute decided by a three-member Panel, the Qualification Challenge Provider shall appoint three Panelists in accordance with the procedures identified in Paragraph 6(e).
d. Unless it has already done so under Paragraph 3(b)(iv), the Qualification Challenger shall submit to the Qualification Challenge Provider, within five calendar days after communication of a response in which the Respondent elects a three-member Panel, the names and contact details of three candidates to serve as one of the Panelists. These candidates may be drawn from any Qualification Challenge Provider's list of panelists.
e. In the event that either the Qualification Challenger or the Respondent elects a three-member Panel, the Qualification Challenge Provider shall endeavor to appoint one Panelist from the list of candidates provided by each of the Qualification Challenger and the Respondent. In the event the Qualification Challenge Provider is unable within five calendar days to secure the appointment of a Panelist on its customary terms from either Party's list of candidates, the Qualification Challenge Provider shall make that appointment from its list of panelists. The third Panelist shall be appointed by the Qualification Challenge Provider from a list of five candidates submitted by the Qualification Challenge Provider to the Parties, the Qualification Challenge Provider's selection from among the five being made in a manner that reasonably balances the preferences of both Parties, as they may specify to the Qualification Challenge Provider within five calendar days after the Qualification Challenge Provider's submission of the five-candidate list to the Parties.
f. Once the entire Panel is appointed, the Qualification Challenge Provider shall notify the Parties of the Panelists appointed and the date by which, absent exceptional circumstances, the Panel shall forward its decision on the complaint to the Qualification Challenge Provider.
7. Impartiality and Independence.
A Panelist shall be impartial and independent and shall have, before accepting appointment, disclosed to the Qualification Challenge Provider any circumstances giving rise to justifiable doubt as to the Panelist's impartiality or independence. If, at any stage during the administrative proceeding, new circumstances arise that could give rise to justifiable doubt as to the impartiality or independence of the Panelist, that Panelist shall promptly disclose such circumstances to the Qualification Challenge Provider. In such event, the Qualification Challenge Provider shall have the discretion to appoint a substitute Panelist.
8. Communication Between Parties and the Panel.
No Party or anyone acting on its behalf may have any unilateral communication with the Panel. All communications between a Party and the Panel or the Qualification Challenge Provider shall be made to a case administrator appointed by the Qualification Challenge Provider in the manner prescribed in the Qualification Challenge Provider's Supplemental Rules.
9. Transmission of the File to the Panel.
The Qualification Challenge Provider shall forward the file to the Panel as soon as the Panelist is appointed in the case of a Panel consisting of a single member, or as soon as the last Panelist is appointed in the case of a three-member Panel.
10. General Powers of the Panel.
a. The Panel shall conduct the administrative proceeding in such manner as it considers appropriate in accordance with the Qualification Challenge Policy and these Qualification Challenge Rules.
b. In all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case.
c. The Panel shall ensure that the administrative proceeding takes place with due expedition. It may, at the request of a Party or on its own motion, extend, in exceptional cases, a period of time fixed by these Qualification Challenge Rules or by the Panel.
d. The Panel shall determine the admissibility, relevance, materiality, and weight of the evidence.
e. A Panel shall decide a request by a Party to consolidate multiple Registered Item disputes in accordance with the Qualification Challenge Policy and these Qualification Challenge Rules.
a. Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
b. The Panel may order that any documents submitted in languages other than the language of the administrative proceeding be accompanied by a translation in whole or in part into the language of the administrative proceeding.
In addition to the complaint and the response, the Panel may request, in its sole discretion, further statements or documents from either of the Parties.
There shall be no in-person hearings (including hearings by teleconference, videoconference, and web conference), unless the Panel determines, in its sole discretion and as an exceptional matter, that such a hearing is necessary for deciding the complaint.
a. In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Qualification Challenge Rules or the Panel, the Panel shall proceed to a decision on the complaint.
b. If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Qualification Challenge Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
a. A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Qualification Challenge Policy, these Qualification Challenge Rules and any rules and principles of law that it deems applicable.
b. Whenever possible, the Panel shall forward its decision on the complaint to the Qualification Challenge Provider within twenty-one calendar days after its appointment pursuant to Paragraph 6.
c. In the case of a three-member Panel, the Panel's decision shall be made by a majority.
d. The Panel's decision shall be in writing, provide the reasons on which it is based, indicate the date on which it was rendered and identify the name(s) of the Panelist(s).
e. Panel decisions and dissenting opinions shall normally comply with the guidelines as to length set forth in the Qualification Challenge Provider's Supplemental Rules. Any dissenting opinion shall accompany the majority decision. If the Panel concludes that the dispute is not within the scope of Paragraph 4(a) of the Qualification Challenge Policy, it shall so state. If after considering the submissions, the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Registered Item Hijacking or was brought primarily to harass the Registered Item holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.
f. If the Challenger has requested that the Registered Item be transferred in accordance with Paragraph 4 of the Policy, the Registry or Registrar shall provide the Challenger with an authorization code which will allow the Challenger to register the corresponding domain name and to update all Challenger Whois information, at the Registrar of its choice, within 21 days of the date on which the notification of the authorization is sent to the Challenger, provided that the Challenger meets all other applicable requirements for registering the domain name.
g. The Center shall publish the outcome of the case together with the names of the Challenger and the Respondent on a publicly accessible web site.
16. Communication of Decision to Parties.
a. Within three calendar days after receiving the decision from the Panel, the Qualification Challenge Provider shall communicate the full text of the decision to each Party, the concerned Registrar(s), Registry Operator, and ICANN. The concerned Registrar(s) shall immediately communicate to each Party, the Provider, Registry Operator, and ICANN the date for the implementation of the decision in accordance with the Policy.
b. Except if the Panel determines otherwise (see Paragraph 5(g) of the Qualification Challenge Policy), the Qualification Challenge Provider shall publish the full decision and the date of its implementation on a publicly accessible Qualification Challenge Provider site. In any event, the portion of any decision determining a complaint to have been brought in bad faith (see Paragraph 15(e) of these Qualification Challenge Rules) shall be published.
17. Settlement or Other Grounds for Termination.
a. If, before the Panel's decision, the Parties agree on a settlement, the Panel shall terminate the administrative proceeding.
b. If, before the Panel's decision is made, it becomes unnecessary or impossible to continue the administrative proceeding for any reason, the Panel shall terminate the administrative proceeding, unless a Party raises justifiable grounds for objection within a period of time to be determined by the Panel.
18. Effect of Court Proceedings.
a. In the event of any legal proceedings initiated prior to or during an administrative proceeding under these Qualification Challenge Rules in respect of a Registered Item that is the subject of the complaint, the Panel shall have the discretion to decide whether to suspend or terminate the administrative proceeding, or to proceed to a decision.
b. In the event that a Party initiates any legal proceedings during the pendency of an administrative proceeding under these Qualification Challenge Rules in respect of a Registered Item that is the subject of the complaint, it shall promptly notify the Panel and the Qualification Challenge Provider. See Paragraph 8 above.
a. For administrative proceedings brought pursuant to Paragraph 4(b) of the Policy, the fees shall be paid as follows:
(i) The Qualification Challenger shall pay to the Qualification Challenge Provider an initial fixed fee, in accordance with the Qualification Challenge Provider's Supplemental Rules, within the time and in the amount required.
(ii) A Respondent electing under Paragraph 5(b)(iv) to have the dispute decided by a three-member Panel, rather than the single-member Panel elected by the Qualification Challenger, shall pay the Provider one-half the fixed fee for a three-member Panel. See Paragraph 5(c). In all other cases, the Qualification Challenger shall bear all of the Provider's fees, except as prescribed under Paragraph 19(e).
b. No action shall be taken by the Qualification Challenge Provider on a complaint until it has received from Qualification Challenger the fee in accordance with Paragraph 19(a)(i).
c. For fees owed by the Qualification Challenger in accordance with Paragraph 19(a)(i), if the Qualification Challenge Provider has not received the fee within ten calendar days after receiving the complaint, the complaint shall be deemed withdrawn and the administrative proceeding terminated.
d. For fees owed by the Respondent in accordance with Paragraph 19(a)(ii), if the Qualification Challenge Provider has not received the fee within ten calendar days after forwarding the complaint to the Respondent, Respondent shall be deemed to have defaulted. See Paragraph 14.
e. In exceptional circumstances, for example in the event an in-person hearing is held, the Qualification Challenge Provider shall request the Parties for the payment of additional fees, which shall be established in agreement with the Parties and the Panel.
Except in the case of deliberate wrongdoing, neither the Qualification Challenge Provider nor a Panelist shall be liable to a Party for any act or omission in connection with any administrative proceeding under these Qualification Challenge Rules.
The version of these Qualification Challenge Rules in effect at the time of the submission of the complaint to the Qualification Challenge Provider shall apply to the administrative proceeding commenced thereby. These Qualification Challenge Rules may not be amended without the express written approval ICANN, which shall not be unreasonably withheld.
Earlier drafts:
27 April
2002
6 March
2002
4 March
2002
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