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Proposed
Unsponsored TLD Agreement: Appendix M (.name)
(8 August 2003)
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Enforcement
of Registration Restrictions
I. IN
GENERAL
Disputes concerning domain
name registrations made with Registry Operator in the Registry TLD
may be resolved under the Uniform Domain-Name Dispute-Resolution Policy
(the "UDRP") or the Eligibility Requirements Dispute Resolution
Policy (the "ERDRP"), in the circumstances described below
for such policies. Disputes concerning second level domain e-mail
("SLD E-mail") address registrations made with Registry
Operator in the .name TLD may be resolved under the ERDRP, in the
circumstances described below for such policy.
In addition, any disputes
may be brought before a court or arbitral tribunal of competent jurisdiction.
The ERDRP does not apply
to disputes over non-SLD E-mail addresses or other e-mail addresses
not registered with Registry Operator in the .name TLD.
II. UNIFORM
DISPUTE-RESOLUTION POLICY
A.
General Information
All ICANN-Accredited Registrars
authorized to register domain names with Registry Operator in the
Registry TLD shall themselves, and shall mandate that their customers
also, follow the UDRP.1 The UDRP applies
to complaints by trademark or service mark owners concerning such
domain name registrations, where the trademark or service mark owner
asserts that:
1. the registered domain
name is identical or confusingly similar to a trademark or service
mark in which the challenger has rights;
2. the registrant has
no rights or legitimate interests in respect of the registered domain
name; and
3. the registered domain
name has been registered and is being used in bad faith.
To invoke the UDRP, a trademark
owner must submit a complaint to an approved dispute-resolution service
provider (see below for a link to a list) in accordance with the Rules
for Uniform Domain Name Dispute Resolution Policy (the "UDRP
Rules").
B.
Principal Documents
The following documents
provide relevant details:
1. Uniform Domain Name
Dispute Resolution Policy. The UDRP is followed by all ICANN-Accredited
Registrars. The UDRP can be found at: http://www.icann.org/udrp/udrp-policy-24oct99.htm.
2. Rules for Uniform
Domain Name Dispute Resolution Policy. The UDRP Rules are followed
by all dispute-resolution service providers, with supplementation
by each provider's supplemental rules. The UDRP Rules can be found
at: http://www.icann.org/udrp/udrp-rules-24oct99.htm.\
3. List of Approved Dispute-Resolution
Service Providers. This list can be found at: http://www.icann.org/udrp/approved-providers.htm.
4. Information Concerning
Approval Process for Dispute-Resolution Service Providers. This
information can be found at: http://www.icann.org/udrp/udrp-provider-approval-process.htm.
III.
ELIGIBILITY REQUIREMENTS DISPUTE RESOLUTION POLICY
A.
General Information
All ICANN-Accredited Registrars
accredited for the Registry TLD are bound by the ERDRP, and shall
mandate that their customers also be bound by the ERDRP. The ERDRP
applies to challenges to (i) registered domain names and SLD E-mail
address registrations within .name on the grounds that the registrant
does not meet the Eligibility Requirements, and (ii) to Defensive
Registrations within .name, each as set forth in Appendix L.
Any person or entity may
bring a challenge to a Defensive Registration or registered domain
name, or SLD E-mail address registration under the ERDRP. In the event
that a challenge against a domain name or SLD E-mail address is successful,
the challenger may have the registration transferred upon meeting
all registration requirements (including a representation that the
registrant meets the Eligibility Requirements). In the event that
a challenge against a Defensive Registration is successful, (i) the
challenger may register a domain name or SLD E-mail address that conflicts
with the Defensive Registration, and (ii) the Defensive Registration
may be subject to cancellation, as described in Appendix L.
To invoke the ERDRP, the
challenger must submit a complaint to an ERDRP dispute resolution
provider approved by ICANN in accordance with the Rules for Eligibility
Requirements Dispute Resolution Policy (the "ERDRP Rules").
B.
Principal Documents
The following documents
provide details:
1. Eligibility Requirements
Dispute Resolution Policy. The ERDRP is followed by all ICANN-Accredited
Registrars with respect to the .name TLD. The ERDRP is attached
as Exhibit 1 to this Appendix, and is made a part of the ICANN-Accredited
Registrar-registrant agreement.
2. Rules for Eligibility
Requirements Dispute Resolution Policy. The ERDRP Rules will be
followed by all ERDRP Providers. Such ERDRP Providers may supplement
these rules, as appropriate. The ERDRP Rules are attached as Exhibit
2 to this Appendix.
3. List of ERDRP Providers.
The then-current list of ERDRP Providers will be identified on ICANN's
web site and will be made available to Registry Operator to post
on its web site.
Notes:
1.
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.
PROCEDURES
FOR ENFORCING THE ELIGIBILITY REQUIREMENTS
The following procedures and rules shall be implemented for enforcing
the Eligibility Requirements for the Registry TLD.
EXHIBIT
1 TO APPENDIX M
Eligibility
Requirements Dispute Resolution Policy
(the "Policy")
[This Policy is to be incorporated
in all Registration Agreements between registrars and registrants concerning
domain-name registrations, SLD E-mail address registrations, and Defensive
Registrations in the .name top-level domain.]
1.
Purpose. This Eligibility Requirements Dispute Resolution Policy
(the "Policy") has been adopted by the Internet Corporation
for Assigned Names and Numbers ("ICANN"), is incorporated
by reference into your Registration Agreement, and sets forth the terms
and conditions in connection with certain kinds of disputes between
you and any party other than us (the registrar) over the registration
and use of an Internet domain name, second level domain e-mail ("SLD
E-mail") address or Defensive Registration (as described in the
eligibility requirements for the .name TLD, posted at <URL>, hereafter
referred to as the "Eligibility Requirements") registered
by you in the .name TLD. This Policy does not apply to non-SLD E-mail
addresses, or other e-mail addresses not registered in the .name TLD.
The proceedings under Paragraph 4 of this Policy will be conducted according
to the Rules for Eligibility Requirements Dispute Resolution Policy
(the "Rules of Procedure"), which are available at <URL>,
and the selected administrative dispute resolution service provider's
supplemental rules. This Policy is in addition to the Uniform Domain
Name Dispute Resolution Policy ("UDRP"), posted at <URL>,
which also applies to you. For the purposes of this Policy, the term
"Registered Name" means a registered domain name on the second
or third level, or SLD E-mail address registration in the .name TLD.
2.
Your Representations. By applying to register a Defensive Registration
or Registered Name, or by asking us to maintain or renew a Defensive
Registration or Registered Name, you hereby represent and warrant to
us that, to your knowledge, the registration of your Defensive Registration
or Registered Name conforms to the Eligibility Requirements. It is your
responsibility to determine whether your Defensive Registration or Registered
Name meets these Eligibility Requirements.
3.
Cancellations, Transfers, and Changes. In addition to the circumstances
described in Paragraph 3 of the UDRP, we will cancel, transfer or otherwise
make changes to Defensive Registrations or Registered Names upon our
receipt of a decision of an Administrative Panel 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 ICANN. (See Paragraphs 5(f) and 5(h) below.) We may also cancel,
transfer or otherwise make changes to a Defensive Registration or Registered
Name registration in accordance with the terms of your Registration
Agreement or other legal requirements.
4.
Mandatory Administrative Proceeding. This paragraph sets forth the
types of disputes for which you are required to submit to a mandatory
administrative proceeding under this Policy. These proceedings will
be conducted before an ERDRP administrative dispute resolution provider
which has been approved by ICANN (a "Provider"). A list of
Providers is available at <URL>.
(a) Applicable Disputes.
You are required to submit to a mandatory administrative proceeding
in the event that a third party (a "complainant") asserts
to the applicable Provider, in compliance with the Rules of Procedure,
that:
(i) for challenges to
Registered Names, your Registered Name does not meet the Eligibility
Requirements;
(ii) for challenges to
Phase I Defensive Registrations (as defined in the Eligibility Requirements),
your Phase I Defensive Registration does not meet the Eligibility
Requirements for Phase I Defensive Registrations; and/or
(iii) for challenges
to Phase I Defensive Registration and/or Phase II Defensive Registrations
(as defined in the Eligibility Requirements), the complainant meets
the Eligibility Requirements to register a Personal Name (as defined
in the Eligibility Requirements) that would otherwise be blocked
by your Defensive Registration.
In the administrative proceeding,
the complainant must prove these elements.
(b) Registered Name
Disputes: Evidence of Registration in Violation of the Eligibility
Requirements. For the purposes of Paragraph 4(a)(i), if the Panel
finds that:
(i) the name corresponding
to the Registered Name is not your legal name (possibly with additional
characters as permitted by the Eligibility Requirements);
(ii) the name corresponding
to the Registered Name is not the name of a fictional character
in which you have trademark or service mark rights (possibly with
additional characters as permitted by the Eligibility Requirements);
and
(iii) you (as an individual)
have not been commonly known by the name corresponding to the Registered
Name (possibly with additional characters as permitted by the Eligibility
Requirements);
then such finding shall
be evidence that your Registered Name violated the Eligibility Requirements.
If the Panel finds that your Registered Name violated the Eligibility
Requirements, the Panel shall exercise the remedies set forth in Section
5(f)(i).
(c) Registered Name
Disputes: How to Demonstrate Your Rights to and Legitimate Interests
in the Registered Name in Responding to a Complaint. For the purposes
of Paragraph 4(a)(i), when you receive a complaint, you should refer
to Paragraph 5 of the Rules of Procedure in determining how your response
should be prepared.
(d) Phase I and Phase
II Defensive Registrations: The Effect on Your Defensive Registration
in the Event that a Complainant Establishes Rights to and Legitimate
Interests in the Registered Name. In the event that the Panel
determines that a complainant may register a Personal Name (as defined
in the Eligibility Requirements) that conflicts with your Defensive
Registration, then the Panel shall exercise the remedies set forth
in Paragraph 5(f)(ii).
(e) Phase I Defensive
Registrations: The Effect on Your Phase I Defensive Registrations
in the Event that a Complainant Claims That You Did Not Meet the Eligibility
Requirements. In the event that the Panel determines that your
Phase I Defensive Registration did not meet the applicable Eligibility
Requirements, then the Panel shall exercise the remedies set forth
in Paragraph 5(f)(iii).
5.
Procedure.
(a) Selection of Provider.
The complainant shall select the Provider from those on the list of
Providers available at <URL> by submitting the complaint to
that Provider. The selected Provider will administer the proceeding,
except in cases of consolidation as described in Paragraph 5(c).
(b) Initiation of Proceeding
and Process and Appointment of Administrative Panel. The Rules
of Procedure 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 you and a complainant, either
you or the complainant 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 Policy or a later version
of this Policy adopted by ICANN. Notwithstanding the foregoing, if
you seek to register a Personal Name that conflicts with a Defensive
Registration(s) that is held by more than one registrant, you must
name all such registrants as parties to your administrative proceeding.
(d) Fees. All fees
charged by a Provider in connection with any dispute before an Administrative
Panel shall be paid in accordance with Paragraph 19 of the Rules.
(e) Our Involvement
in Administrative Proceedings. We do not, and will not, participate
in the administration or conduct of any proceeding before an Administrative
Panel. In addition, we will not be liable as a result of any decisions
rendered by the Administrative Panel.
(f) Remedies. The
remedies available to a complainant pursuant to any proceeding before
an Administrative Panel shall be limited to:
(i) for disputes over
Registered Names,
(A) requiring the cancellation
of your Registered Name,
(B) if the complainant
represents and warrants that the complainant meets the Eligibility
Requirements for a domain name or SLD E-mail registration corresponding
to the Registered Name, then the complainant may request that
your Registered Name be transferred to the complainant, subject
to the complainant's payment of registration fees and satisfaction
of other procedures for registration, and
(C) if the complainant
does not represent that the complainant meets the Eligibility
Requirements for a domain name or SLD E-mail registration corresponding
to the Registered Name, then the complainant may elect to register
the Registered Name as a Defensive Registration blocking the challenged
name, provided that upon cancellation of your Registered Name
the complainant pays Defensive Registration fees, meets the Common
Defensive Registration Eligibility Requirements and otherwise
meets the requirements for a Defensive Registration; or
(ii) for challenges to
Phase I or Phase II Defensive Registrations,
(A) the payment by
you of the fees charged by the Provider in connection with the
dispute,
(B) to the extent the
complainant represents and warrants that the complainant meets
the Eligibility Requirements, the complainant may obtain any Registered
Names that would otherwise be blocked by your Defensive Registration,
provided the Registered Name or Names are not blocked by other
Defensive Registrations and the complainant pays any applicable
registration fees and satisfies other registration procedures.
In the event that the challenged Defensive Registration was a
combined second and third level Defensive Registration, then such
Defensive Registration shall be cancelled, and
(C) if the challenge
is the third successful challenge to your Defensive Registration,
then your Defensive Registration will be cancelled; or
(iii) for successful
challenges to Phase I Defensive Registrations on the basis that
you did not meet the applicable Eligibility Requirements you will
thereafter be required to demonstrate, at your expense, and as set
forth in the Rules of Procedure, that you meet the Eligibility Requirements
for Phase I Defensive Registrations for all Phase I Defensive Registrations
that you have registered within .name with us or with any other
registrar. In the event that you are unable to demonstrate the foregoing
with respect to any such Phase I Defensive Registration(s), those
Defensive Registration(s) will be cancelled.
(g) Notification and
Publication. The Provider shall notify us of any decision made
by an Administrative Panel with respect to a Defensive Registration
or Registered Name. All decisions under this 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) Availability of
Court Proceedings. The mandatory administrative proceeding requirements
set forth in Paragraph 4 shall not prevent either you or the complainant
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. If an Administrative
Panel decides that your Defensive Registration or Registered Name
should be canceled or transferred, we will wait ten (10) business
days (as observed in the location of our principal office) after we
are informed by the applicable Provider of the Administrative Panel's
decision before implementing that decision. We will then implement
the decision unless we have received from you during that ten (10)
business day period official documentation (such as a copy of a complaint,
file-stamped by the clerk of the court) that you have commenced a
lawsuit against the complainant in a jurisdiction to which the complainant
has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure.
(In general, that jurisdiction is either the location of our principal
office or of your address as shown in the registry Whois database.
(See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure for details.)
If we receive such documentation within the ten (10) business day
period, we will not implement the Administrative Panel's decision,
and we will take no further action, until we receive (i) evidence
satisfactory to us of a resolution between the parties; (ii) evidence
satisfactory to us that your lawsuit has been dismissed or withdrawn;
or (iii) a copy of an order from such court dismissing your lawsuit
or ordering that you do not have the right to continue to use your
Defensive Registration or Registered Name.
6.
All Other Disputes and Litigation. All other disputes between you
and any party other than us regarding your Defensive Registration or
Registered Name that are not brought pursuant to the mandatory administrative
proceeding provisions of Paragraph 4 shall be resolved between you and
such other party through any court, arbitration or other proceeding
that may be available.
7.
Our Involvement in Disputes. We will not participate in any way
in any dispute between you and any party other than us or the operator
of the .name registry regarding the registration and use of your Defensive
Registration or Registered Name. You shall not name us as a party or
otherwise include us in any such proceeding. In the event that we are
named as a party in any such proceeding, we reserve the right to raise
any and all defenses deemed appropriate, and to take any other action
necessary to defend ourselves.
8.
Maintaining the Status Quo. We will not cancel, transfer, activate,
deactivate, or otherwise change the status of any Defensive Registration
or Registered Name under this Policy except as provided in Paragraph
3 above.
9.
Transfers During a Dispute.
(a) Transfers of a Defensive
Registration or Registered Name to a New Holder. You may not transfer
your Defensive Registration or Registered Name to another holder (i)
during a pending administrative proceeding brought pursuant to Paragraph
4 or for a period of fifteen (15) business days (as observed in the
location of our principal place of business) after such proceeding
is concluded; or (ii) during a pending court proceeding or arbitration
commenced regarding your Defensive Registration or Registered Name
unless the party to whom the Defensive Registration or Registered
Name is being transferred agrees, in writing, to be bound by the decision
of the court or arbitrator. We reserve the right to cancel any transfer
of a Defensive Registration or Registered Name to another holder that
is made in violation of this subparagraph.
(b) Changing Registrars.
You may not transfer your Defensive Registration or Registered Name
to another registrar during a pending administrative proceeding brought
pursuant to Paragraph 4 or for a period of fifteen (15) business days
(as observed in the location of our principal place of business) after
such proceeding is concluded. You may transfer administration of your
Defensive Registration or domain name or Registered Name to another
registrar during a pending court action or arbitration, provided that
the Defensive Registration or Registered Name you have registered
with us shall continue to be subject to the proceedings commenced
against you in accordance with the terms of this Policy.
10.
Policy Modifications. We reserve the right to modify this Policy
at any time with the permission of ICANN. We will post our revised Policy
at http://www.nic.name at least thirty (30) calendar days before it
becomes effective. Unless this Policy has already been invoked by the
submission of a complaint to a Provider, 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 Defensive Registration or Registered Name dispute,
whether the dispute arose before, on or after the effective date of
our change. In the event that you object to a change in this Policy,
your sole remedy is to cancel your Defensive Registration or Registered
Name 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 Defensive Registration or Registered Name.
EXHIBIT
2 TO APPENDIX M
Rules for
Eligibility Requirements Dispute Resolution Policy
(the "Rules")
[These Rules apply uniformly
to ERDRP proceedings administered by all approved Providers.]
Administrative proceedings
for the resolution of disputes under the Eligibility Requirements Dispute
Resolution Policy adopted by ICANN shall be governed by these Rules
and also the Supplemental Rules of the Provider administering the proceedings,
as posted on its web site.
1.
Definitions. In these Rules:
"Complainant"
means the party initiating a complaint concerning a Defensive Registration
or Registered Name.
"Defensive Registration"
has the meaning set forth in the Eligibility Requirements.
"Eligibility Requirements"
means the Eligibility Requirements for the .name TLD, posted at <URL>.
"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 or (b) the Defensive Registration or Registered
Name holder's address as shown for the registration of the Defensive
Registration or Registered Name in Registry Operator's Whois database
at the time the complaint is submitted to the Provider.
"Panel" means
an administrative panel appointed by a Provider to decide a complaint
concerning a Defensive Registration or Registered Name.
"Panelist" means
an individual appointed by a Provider to be a member of a Panel.
"Party" means
a Complainant or a Respondent.
"Personal Name"
has the meaning set forth in the Eligibility Requirements.
"Phase I Defensive
Registration" has the meaning set forth in the Eligibility Requirements.
"Phase II Defensive
Registration" has the meaning set forth in the Eligibility Requirements.
"Policy" means
the Eligibility Requirements Dispute Resolution Policy that is incorporated
by reference and made a part of the Registration Agreement.
"Provider" means
a dispute-resolution service provider that is approved ICANN. A list
of such Providers appears at <URL>.
"Registered Name"
means, collectively, domain name and SLD E-mail address registrations
in the .name TLD.
"Registrar" means
the entity with which the Respondent has registered a Defensive Registration
or Registered Name that is the subject of a complaint.
"Registration Agreement"
means the agreement between a Registrar and a Defensive Registration
or Registered Name holder.
"Registry Operator"
means the entity that, pursuant to a Registry Agreement with ICANN,
operates the registry for the .name TLD.
"Respondent"
means the holder of a Defensive Registration or Registered Name against
which a complaint is initiated.
"Reverse Registered
Name Hijacking" means using the Policy in bad faith to attempt
to deprive a Registered Name holder of a Registered Name.
"SLD E-mail"
means second level domain e-mail address within the .name TLD, as
described in the Eligibility Requirements.
"Supplemental Rules"
means the rules adopted by the Provider and approved by ICANN administering
a proceeding to supplement these Rules. Supplemental Rules shall not
be inconsistent with the Policy or these Rules and shall cover such
topics as fees, word and page limits and guidelines, the means for
communicating with the Provider and the Panel, and the form of cover
sheets.
2.
Communications.
(a) When forwarding a complaint
to the Respondent, it shall be the 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 Defensive
Registration or Registered Name 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:
(A) for disputes over
a domain name:
(1) the e-mail addresses
for the registration holder and the technical, administrative,
and billing contacts of the domain name;
(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 the 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; and
(B) for disputes over
an SLD E-mail address:
(1) the SLD E-mail
address; and
(2) the e-mail addresses
for the registration holder (if different from the SLD E-mail
address in question) and the technical, administrative, and
billing contacts of the SLD E-mail address; and
(C) for disputes over
a Defensive Registration:
(1) the e-mail addresses
for the registration holder and the technical, administrative,
and billing contacts of the Defensive Registration; and
(iii) sending the complaint
to any address the Respondent has notified the Provider it prefers
and, to the extent practicable, to all other addresses provided
to the Provider by Complainant under Paragraph 3(b)(v).
(b) Except as provided
in Paragraph 2(a), any written communication to Complainant or Respondent
provided for under these Rules shall be made by the preferred means
stated by the Complainant 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 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 Provider and the Registrar.
(f) Except as otherwise
provided in these Rules, or decided by a Panel, all communications
provided for under these 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 Rules, all time periods calculated under these Rules
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).
(h) Any communication by
(i) a Panel to any Party
shall be copied to the Provider and to the other Party;
(ii) the 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 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 Provider) of the circumstances of the
notification. Further proceedings concerning the communication and
any response shall be as directed by the Panel (or the Provider).
3.
The Complaint.
(a) Any person or entity
may initiate an administrative proceeding by submitting a complaint
in accordance with the Policy and these Rules to any Provider approved
by ICANN. (Due to capacity constraints or for other reasons, a 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 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 Policy
and these Rules;
(ii) Provide the name,
postal and e-mail addresses, and the telephone and telefax numbers
of the Complainant and of any representative authorized to act for
the Complainant in the administrative proceeding;
(iii) Specify a preferred
method for communications directed to the Complainant 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
Complainant elects to have the dispute decided by a single-member
or a three-member Panel and, in the event Complainant 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 ICANN-approved Provider's list of panelists);
(v) Provide the name
of the Respondent (Defensive Registration or Registered Name holder)
and all information (including any postal and e-mail addresses and
telephone and telefax numbers) known to Complainant regarding how
to contact Respondent or any representative of Respondent, including
contact information based on pre-complaint dealings, in sufficient
detail to allow the Provider to send the complaint as described
in Paragraph 2(a);
(vi) Specify the Defensive
Registration(s) or Registered Name(s) that is/are the subject of
the complaint;
(vii) Identify the Registrar(s)
with whom the Defensive Registration(s) or Registered Name(s) is/are
registered at the time the complaint is filed;
(viii) Specify the Defensive
Registration(s) or Registered Name(s) on which the complaint is
based;
(ix) Identify the basis
of the challenge, as follows:
(A) If the challenge
is pursuant to Paragraph 4(b) of the Policy, describe, in accordance
with the Policy, the manner in which the Registered Name(s) do
not satisfy the Eligibility Requirements and, if the Complainant
seeks to have the Registered Name(s) transferred to him, a representation
and warranty that the complainant meets the Eligibility Requirements,
(B) If the challenge
is pursuant to Paragraph 4(d) of the Policy, a representation
and warranty that the Complainant meets the Eligibility Requirements
to register a Personal Name in conflict with the Defensive Registration,
(C) If the challenge
is pursuant to Paragraph 4(e) of the Policy, the reasons the Phase
I Defensive Registration does not meet the Eligibility Requirements
for Phase I Defensive Registrations;
(The description should
discuss any aspects of the Policy that are applicable and shall
comply with any word or page limit set forth in the Provider's Supplemental
Rules)
(x) Specify, in accordance
with the Policy, the remedies sought;
(xi) Identify any other
legal proceedings that have been commenced or terminated in connection
with or relating to the any of the Defensive Registration(s) or
Registered Name(s) that are the subject of the complaint;
(xii) State that a copy
of the complaint, together with the cover sheet as prescribed by
the Provider's Supplemental Rules, has been sent or transmitted
to the Respondent (Defensive Registration or Registered Name holder),
in accordance with Paragraph 2(b);
(xiii) State that Complainant
will submit, with respect to any challenges to a decision in the
administrative proceeding canceling or transferring Defensive Registration(s)
or the Registered Name(s), 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 Complainant
or its authorized representative:
"Complainant agrees
that its claims and remedies concerning the registration of the
Defensive Registration, domain name or SLD E-mail address, the
dispute, or the dispute's resolution shall be solely against the
Defensive Registration, domain name or SLD E-mail address holder
and waives all such claims and remedies against (a) the dispute-resolution
provider and panelists, except in the case of deliberate wrongdoing,
(b) the registrar, (c) the registry administrator, and (d) the
Internet Corporation for Assigned Names and Numbers, as well as
their directors, officers, employees, and agents."
"Complainant certifies
that the information contained in this Complaint is to the best
of Complainant'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 Policy applicable to
the Defensive Registration or Registered Name(s) in dispute and
any evidence of the Complainant's eligibility to register the name
under the Eligibility Requirements, upon which the complaint relies,
together with a schedule indexing such evidence.
(c) The complaint may relate
to more than one Defensive Registration or Registered Name (domain
name, SLD E-mail address, or both), provided that, in the case of
Registered Names, the Registered Names are registered by the same
holder. If the Complainant wishes to register a Personal Name that
conflicts with a Defensive Registration(s) that is held by more than
one registrant, the complaint must name all such registrants as parties
to the administrative proceeding.
4.
Notification of Complaint.
(a) The Provider shall
review the complaint for administrative compliance with the Policy
and these Rules and, if in compliance, shall forward the complaint
(together with the explanatory cover sheet prescribed by the Provider's
Supplemental Rules) to the Respondent, in the manner prescribed by
Paragraph 2(a), within three (3) calendar days following receipt of
the fees to be paid by the Complainant in accordance with Paragraph
19.
(b) If the Provider finds
the complaint to be administratively deficient, it shall promptly
notify the Complainant and the Respondent of the nature of the deficiencies
identified. The Complainant 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 Complainant.
(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 Provider shall
immediately notify the Complainant, the Respondent, the concerned
Registrar(s), and ICANN of the date of commencement of the administrative
proceeding.
5.
The Response.
(a) Within twenty (20)
days after the date of commencement of the administrative proceeding
the Respondent shall submit a response to the 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) Address the allegations
of the complaint, as follows:
(A) If the challenge
is to a Registered Name pursuant to Paragraph 4(b) of the Policy,
respond specifically to the statements and allegations contained
in the complaint and include any and all bases by which Respondent
(Registered Name holder) meets the Eligibility Requirements and
thus should retain the disputed Registered Name,
(B) If the challenge
is to a Phase I Defensive Registration pursuant to Paragraph 4(e)
of the Policy, include documentation that demonstrates that Respondent
meets the Eligibility Requirements for a Phase I Defensive Registration,
including, without limitation, a certified copy of the Respondent's
corresponding trademark or service mark registration (the Provider
may, in its sole discretion, grant reasonable extensions of time
for the Respondent to obtain such certified copy upon a demonstration
of need by the Respondent), or
(C) If the challenge
is to a Phase I or Phase II Defensive Registration pursuant to
Paragraph 4(d) of the Policy, describe any evidence of which Respondent
is aware that would demonstrate that the Complainant does not
meet the Eligibility Requirements for the claimed domain name
or SLD E-mail address;
(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 (Defensive Registration or Registered Name holder)
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 Complainant 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 Complainant
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 ICANN-approved 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 Defensive Registration(s) or Registered
Name(s) that are the subject of the complaint;
(vii) State that a copy
of the response has been sent or transmitted to the Complainant,
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 Complainant 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 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 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 Provider.
(e) If a Respondent does
not submit a response, in the absence of exceptional circumstances,
the Panel shall decide the dispute based upon the complaint.
6.
Appointment of the Panel and Timing of Decision.
(a) Each Provider shall
maintain and publish a publicly available list of panelists and their
qualifications.
(b) If neither the Complainant
nor the Respondent has elected a three-member Panel (Paragraphs 3(b)(iv)
and 5(b)(iv)), the Provider shall appoint, within five (5) calendar
days following receipt of the response by the Provider, or the lapse
of the time period for the submission thereof, a single Panelist from
its list of panelists.
(c) If either the Complainant
or the Respondent elects to have the dispute decided by a three-member
Panel, the Provider shall appoint three Panelists in accordance with
the procedures identified in Paragraph 6(e).
(d) Unless it has already
elected a three-member Panel, the Complainant shall submit to the
Provider, within five (5) 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 ICANN and Registry Operator-approved
Provider's list of panelists.
(e) In the event that either
the Complainant or the Respondent elects a three-member Panel, the
Provider shall endeavor to appoint one Panelist from the list of candidates
provided by each of the Complainant and the Respondent. In the event
the Provider is unable within five (5) calendar days to secure the
appointment of a Panelist on its customary terms from either Party's
list of candidates, the Provider shall make that appointment from
its list of panelists. The third Panelist shall be appointed by the
Provider from a list of five candidates submitted by the Provider
to the Parties, the 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 Provider within five (5) calendar
days of the Provider's submission of the five-candidate list to the
Parties.
(f) Once the entire Panel
is appointed, the 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 Provider.
7.
Impartiality and Independence. A Panelist shall be impartial and
independent and shall have, before accepting appointment, disclosed
to the 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 Provider. In such event, the 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 Provider
shall be made to a case administrator appointed by the Provider in the
manner prescribed in the Provider's Supplemental Rules.
9.
Transmission of the File to the Panel. The 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 Policy and these 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 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 Defensive Registration
or Registered Name disputes in accordance with the Policy and these
Rules.
11.
Language of Proceedings.
(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.
12.
Further Statements. 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.
13.
In-Person Hearings. 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.
14.
Default
(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 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 Rules or any request from the Panel,
the Panel shall draw such inferences therefrom as it considers appropriate.
15.
Panel Decisions
(a) A Panel shall decide
a complaint on the basis of the statements and documents submitted
and in accordance with the Policy, these Rules and any rules and principles
of law that it deems applicable.
(b) In the absence of exceptional
circumstances, the Panel shall forward its decision on the complaint
to the Provider within fourteen (14) days of 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 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
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 Name Hijacking or was brought
primarily to harass the Registered Name or Defensive Registration
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 Panel finds
that Respondent is unable to demonstrate, through the documents and
procedures described in Paragraph 5(b)(i)(c) of these Rules and in
the Policy, that its Phase I Registration meets the applicable Eligibility
Requirements, then (1) the Panel shall require Respondent to provide
documentation that demonstrates that Respondent meets the Eligibility
Requirements for a Phase I Defensive Registration for all other Phase
I .name Defensive Registrations registered through any registrar by
Respondent or entity with which Respondent is affiliated or which
Respondent controls, and (2) the Panel, or such other examiner as
may be appointed by the Provider, shall review each such Phase I Defensive
Registration to verify that it meets the Eligibility Requirements
for Phase I Defensive Registrations. Respondent shall have a period
of thirty (30) days to submit all such documentation to the Panel.
16.
Communication of Decision to Parties
(a) Within three (3) calendar
days after receiving the decision from the Panel, the Provider shall
communicate the full text of the decision to each Party, the concerned
Registrar(s), and ICANN. The concerned Registrar(s) shall immediately
communicate to each Party, the Provider, 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 Policy), the Provider
shall publish the full decision and the date of its implementation
on a publicly accessible web 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 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
in respect of a Defensive Registration or Registered Name dispute
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 in respect of a Defensive Registration or Registered Name
dispute that is the subject of the complaint, it shall promptly notify
the Panel and the Provider. See Paragraph 8 above.
19.
Fees
(a) Fees shall be paid
as follows:
(i) For administrative
proceedings brought pursuant to Paragraph 4(b) of the Policy:
(A) The Complainant
shall pay to the Provider an initial fixed fee, in accordance
with the Provider's Supplemental Rules, within the time and in
the amount required.
(B) 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 Complainant,
shall pay the Provider one-half the fixed fee for a three-member
Panel. See Paragraph 5(c). In all other cases, the Complainant
shall bear all of the Provider's fees, except as prescribed under
Paragraph 19(d).
(ii) For administrative
proceedings brought pursuant to Paragraph 4(d) or 4(e) of the Policy:
(A) The Complainant
and the Respondent shall each pay into escrow an initial fixed
fee, in accordance with the Provider's Supplemental Rules, within
the time and in the amount required.
(B) 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 Complainant,
shall pay the Provider any additional fee for a three-member Panel.
See Paragraph 5(c).
(C) Upon the decision
of the Panel, (I) the fee paid by the prevailing party shall be
released from escrow and returned to the prevailing party, and
(II) the fee paid by the losing party shall be paid to the Provider.
A Respondent electing under Paragraph 5(b)(iv) to have the dispute
decided by a three-member Panel shall not be entitled to the return
of any additional fee paid for such three-member Panel, whether
or not Respondent prevailed before the Panel.
(iii) Upon a successful
challenge to one of Respondent's Phase I Defensive Registrations,
for reviews of all of a Respondent's other Phase I Defensive Registrations
conducted pursuant to Paragraph 5(f)(iii) of the Policy and Paragraph
15(f) of these Rules, Respondent shall pay a fee, in accordance
with the Provider's Supplemental Rules as approved by ICANN, within
the time and in the amount required.
(b) No action shall be
taken by the Provider on a complaint until it has received from Complainant
the fee or confirmation of the escrow deposit in accordance with Paragraph
19(a).
(c) For fees owed by the
Complainant in accordance with Paragraphs 19(a)(i) and 19(a)(ii),
if the Provider has not received the fee or confirmation of the escrow
deposit within ten (10) 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 Paragraphs 19(a)(ii), if the Provider
has not received the fee or confirmation of the escrow deposit within
ten (10) calendar days after forwarding the complaint to the Respondent,
Respondent shall be deemed to have defaulted and the Defensive Registration
in question shall be deemed cancelled and the administrative proceeding
terminated.
(e) For fees owed in accordance
with Paragraph 19(a)(iii), if the Provider has not received any required
fees within fifteen (15) calendar days of delivering a written request
for such fees, all of Respondent's Phase I Defensive Registrations
shall be deemed cancelled and the administrative proceeding terminated.
(f) In exceptional circumstances,
for example in the event an in-person hearing is held, the Provider
shall request the Parties for the payment of additional fees, which
shall be established in agreement with the Parties and the Panel.
20.
Exclusion of Liability. Except in the case of deliberate wrongdoing,
neither the Provider nor a Panelist shall be liable to a Party for any
act or omission in connection with any administrative proceeding under
these Rules.
21.
Amendments. The version of these Rules in effect at the time of
the submission of the complaint to the Provider shall apply to the administrative
proceeding commenced thereby. These Rules may not be amended without
the express written approval ICANN.
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concerning the layout, construction and functionality of this site
should be sent to webmaster@icann.org.
Page Updated
12-Aug-2003
(c) 2001
The Internet Corporation for Assigned Names and Numbers.
All rights
reserved.
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