| ¡¡ 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
(provided 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) the domain-name holder's address as shown for the registration of the
domain name in Registrar'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 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 www.icann.org/udrp/approved-providers.htm.
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 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 Whois
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
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
(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 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 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.
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 of ICANN. |