|
This Paragraph sets forth the type of disputes for which
you are required to submit to a mandatory administrative proceeding.
These proceedings will be conducted before one of the administrative-dispute-resolution
service providers listed at www.icann.org/udrp/approved-providers.htm
(each, a "Provider").
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) your domain name is identical or confusingly similar
to a trademark or service mark in which the complainant has
rights; and
(ii) you have no rights or legitimate interests in respect
of the domain name; and
(iii) your domain name has been registered and is being used
in bad faith.
In the administrative proceeding, the complainant must prove
that each of these three elements are present.
b. Evidence of Registration and Use in Bad Faith. For the
purposes of Paragraph 4(a)(iii), the following circumstances,
in particular but without limitation, if found by the Panel
to be present, shall be evidence of the registration and use
of a domain name in bad faith:
(i) circumstances indicating that you have registered or
you have acquired the domain name primarily for the purpose
of selling, renting, or otherwise transferring the domain
name registration to the complainant who is the owner of the
trademark or service mark or to a competitor of that complainant,
for valuable consideration in excess of your documented out-of-pocket
costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent
the owner of the trademark or service mark from reflecting
the mark in a corresponding domain name, provided that you
have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the
purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted
to attract, for commercial gain, Internet users to your web
site or other on-line location, by creating a likelihood of
confusion with the complainant's mark as to the source, sponsorship,
affiliation, or endorsement of your web site or location or
of a product or service on your web site or location.
c. How to Demonstrate Your Rights to and Legitimate Interests
in the Domain Name in Responding to a Complaint. When you
receive a complaint, you should refer to Paragraph 5 of the
Rules of Procedure in determining how your response should
be prepared. Any of the following circumstances, in particular
but without limitation, if found by the Panel to be proved
based on its evaluation of all evidence presented, shall demonstrate
your rights or legitimate interests to the domain name for
purposes of Paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of,
or demonstrable preparations to use, the domain name or a
name corresponding to the domain name in connection with a
bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization)
have been commonly known by the domain name, even if you have
acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use
of the domain name, without intent for commercial gain to
misleadingly divert consumers or to tarnish the trademark
or service mark at issue.
d. Selection of Provider. The complainant shall select the
Provider from among those approved by ICANN by submitting
the complaint to that Provider. The selected Provider will
administer the proceeding, except in cases of consolidation
as described in Paragraph 4(f).
e. 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").
f. 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.
g. Fees. All fees charged by a Provider in connection with
any dispute before an Administrative Panel pursuant to this
Policy shall be paid by the complainant, except in cases where
you elect to expand the Administrative Panel from one to three
panelists as provided in Paragraph 5(b)(iv) of the Rules of
Procedure, in which case all fees will be split evenly by
you and the complainant.
h. 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.
i. Remedies. The remedies available to a complainant pursuant
to any proceeding before an Administrative Panel shall be
limited to requiring the cancellation of your domain name
or the transfer of your domain name registration to the complainant.
j. Notification and Publication. The Provider shall notify
us of any decision made by an Administrative Panel with respect
to a domain name you have registered with us. 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.
k. 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 domain name registration
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 our 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 domain name.
|
