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Note: These rules are now the subject of public consultation. See www.nic.ky .
Rules
for Uniform Domain Name Dispute Resolution (the "Rules")
Administrative proceedings for the resolution of disputes under the
Uniform 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 domain-name registration.
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 domain-name
holder’s address as shown for the registration of the domain name
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 approved by ICANN. A list of such Providers appears at http://www.icann.org/dndr/udrp/approved-providers.htm.
Registrar means the Information and
Communications Technology Authority.
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 the Policy in bad faith to attempt to
deprive a registered domain-name holder of a domain name.
Supplemental Rules means the
rules adopted by the Provider 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 domain name's
registration data in Registrar's database for the registered domain-name
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) the e-mail addresses for those technical,
administrative, and billing contacts;
(B) postmaster@<the contested domain name>; and
(C) 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
(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 Registrar, the Provider and to the other Party;
(ii) the Provider to any Party shall be copied to the
other Party and the Registrar; and
(iii) a Party shall be copied
to the other Party, the Registrar, 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 (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, in sufficient
detail to allow the Provider to send the complaint as described in Paragraph 2(a);
(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, if any, 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) 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(s) is/are
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(s) 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. The description 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 any of 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 prescribed by the Provider's Supplemental Rules, 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 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 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 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 domain name(s) in dispute and 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
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 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) Respond specifically 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 (This portion 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
(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 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 domain
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. The fees
for a single-member Panel shall be paid entirely by the Complainant.
(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).
The fees for a three-member Panel shall be paid in their entirety by the
Complainant, except where the election for a three-member Panel was made by
the Respondent, in which case the applicable fees shall be shared equally
between the Parties.
(d) Unless it has already elected a three-member Panel, the
Complainant shall submit to the Provider, within five (5) calendar days of
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-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 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 English language, 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 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. 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 4(j) 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 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. See Paragraph
8 above.
19. Fees
(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. 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).
Upon appointment of the Panel, the Provider shall refund the appropriate
portion, if any, of the initial fee to the Complainant, as specified in the
Provider's Supplemental Rules.
(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) calendar 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. Under no circumstances
liability of any kind attach to the Registrar.
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.
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