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Rules for Uniform Domain Name Dispute Resolution PolicyDraft Rules Prepared by ICANN
Staff and Counsel Date posted: September 29, 1999 |
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Rules for Uniform Domain Name Dispute Resolution PolicyDraft Rules Prepared by ICANN
Staff and Counsel Date posted: September 29, 1999 |
[NOTE: This document contains proposed implementation language that has been posted for public review and comment. It has not been approved by the ICANN Board.]
(As Approved by ICANN on [date])
Any dispute administered by this Provider shall be governed by these Rules and also the supplemental rules of the Provider, located at <URL>.
1. Definitions
In these Rules:
Complainant means the party initiating a complaint concerning a domain name registration.
ICANN refers to the Internet Corporation for Assigned Names and Numbers.
Mutual Jurisdiction means the jurisdiction either (a) at the principal office of the Registrar (if the domain-name holder has submitted in its Registration Agreement to that jurisdiction for court adjudication of disputes concerning or arising from the use of the domain name) or (b) at the location of the domain-name holder’s address as shown for the registration of the domain name in Registrar’s Whois database at the time of the complaint (if the domain-name holder has not submitted to such jurisdiction in the Registration Agreement).
Panel means an administrative panel appointed by a Provider to decide a complaint concerning a domain name registration.
Panelist means an individual appointed by a Provider to be a member of a Panel.
Party means a Complainant or a Respondent.
Policy means the Uniform Domain Name Dispute Resolution Policy that is incorporated by reference and made a part of the Registration Agreement.
Provider means a dispute resolution service provider listed in the Registrar’s website.
Registrar means the entity with which the Respondent has registered a domain name that is the subject of a complaint.
Registration Agreement means the agreement between a Registrar and a domain name holder.
Respondent means the holder of a domain name registration against which a complaint is initiated.
Reverse Domain Name Hijacking means using this Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name.
2. Communications
(a) When forwarding a complaint to the Respondent, it shall be the Provider’s responsibility to employ any 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 domain name’s registration data in Registrar’s Whois database for the registered domain-name holder, the technical contact, and the administrative contact and (B) supplied by Registrar to 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 the e-mail addresses for those technical, administrative, and billing contacts; 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 Provider by Complainant under Paragraph 3(b)(v); and
(iv) if the domain name (or "www." followed by the domain name) resolves to an active web page, sending electronic portions of the complaint to any e-mail address shown on that web page.
(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 shall be made by the means and in the manner (including number of copies) stated at <URL>. Any communication with the Panel shall be made according to the Panel’s directions.
(d) Either Party may update its contact details by notifying the Provider and the Registrar.
(e) 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.
(f) All time periods calculated under these Rules shall begin to run on the earliest date that the communication is deemed to have been made in accordance with Paragraph 2(e).
(g) 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.
(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.
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 [subject to comment].
(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;
(v) Provide the name of the Respondent (domain-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;
(vi) Specify the domain name(s) that is/are the subject of the complaint;
(vii) Identify the Registrar(s) with whom the domain name(s) is/are registered at the time the complaint is filed;
(viii) Specify the trademark(s) or service mark(s) on which the complaint is based and, for each mark, describe the goods or services with which the mark is used (Complainant may also separately describe other goods and services with which it intends, at the time the complaint is submitted, to use the mark in the future);
(ix) In no more than [number of] words per domain name, describe, in accordance with the Policy, the grounds on which the complaint is made including, in particular,
(1) the manner in which the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) why the Respondent (domain-name holder) should be considered as having no rights or legitimate interests in respect of the domain name(s) that is/are the subject of the complaint; and
(3) why the domain name should be considered as having been registered and being used in bad faith.
The description should, for elements (2) and (3), discuss any aspects of Paragraphs 4(b) and 4(c) of the Policy that are applicable.
(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 domain name(s) that are the subject of the complaint;
(xii) State that a copy of the complaint, together with the cover sheet as posted at <URL>, has been sent or transmitted to the Respondent (domain-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 the domain name, to the jurisdiction of the courts in the 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 domain name, the dispute, or the dispute’s resolution shall be solely against the domain-name holder and waives all such claims and remedies against (a) the dispute-resolution provider, (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 domain name(s) in dispute, any trademark or service mark registration upon which the complaint relies, together with a schedule indexing such evidence.
(c) The complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder.
4. Notification of Complaint
(a) The Provider shall review the complaint for compliance with the Policy and these Rules and, if in compliance, shall forward the complaint (together with any explanatory cover sheet prescribed by the Provider’s supplemental rules) to the Respondent, in the manner prescribed by Paragraph 2(a), within three (3) days following receipt of the fees to be paid by the Complainant in accordance with Paragraph 19.
(b) If the Provider finds the complaint not to be in compliance with the Policy and these Rules, it will promptly notify the Complainant and the Respondent of the fact of and reasons for that finding. The administrative proceeding will be deemed dismissed without prejudice to submission of a different complaint by Complainant, with payment of a new fee.
(c) The date of commencement of the administrative proceeding shall be the date on which the complaint is forwarded by the Provider 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 of 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) In no more than [number of] words per domain name, respond to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain-name holder) to retain registration and use of the disputed domain name;
(ii) Provide the name, postal and e-mail addresses, and the telephone and telefax numbers of the Respondent (domain-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 designated 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 and, if so, commit to pay half the fees of the Provider and Panelists;
(v) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to the domain name(s) that are the subject of the complaint;
(vi) State that a copy of the response has been sent or transmitted to the Complainant, in accordance with Paragraph 2(b); and
(vii) 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
(viii) Annex any documentary or other evidence upon which the Respondent relies, together with a schedule indexing such documents.
(c) At the request of the Respondent, the Provider may, in exceptional cases, extend the period of time for the filing of the response.
(d) 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) [Language being developed for three-member panel situation]
(d) 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.
(e) In appointing a Panel, the Provider shall take into consideration factors such as the identity of the Parties, the language of the proceedings (Paragraph 11), the circumstances underlying the complaint and the number of other complaints to be decided by the Panel.
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.
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 domain 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 shall normally be limited to [number of] words. Any dissenting opinion shall accompany the majority decision and shall normally be limited to [number of] words. 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 Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.
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 and shall indicate the date for the implementation of the decision in accordance with the Policy.
(b) Except if the Panel determines otherwise (see Paragraph 4(j) of the Policy), the Provider shall publish the full decision and the date of its implementation on a publicly accessible website.
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 domain 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 domain name dispute that is the subject of the complaint, it shall promptly notify the Panel and the Provider.
19. Fees
(a) The Complainant shall pay to the Provider an initial fixed fee for a three-member Panel (including fees to which the Panelists are entitled), in accordance with the Provider’s published schedule, within the time and in the amount required. (See Annex A to the Provider’s supplemental rules). 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 at the time the Response is submitted. After the Response is submitted, the Provider will refund to Complainant either the difference in fees for three-member and single-member Panels or one-half the fee for a three-member Panel, as appropriate.
(b) No action shall be taken by the Provider on a complaint until it has received from Complainant the initial fee in accordance with Paragraph 19(a).
(c) If the Provider has not received the fee within ten (10) days of receiving the complaint, the complaint shall be deemed withdrawn and the administrative proceeding terminated.
(d) 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 filing of the complaint shall apply to the administrative proceeding commenced thereby. These Rules may not be amended without the express written approval of ICANN.