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Nominet UK - Dispute Policy
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| Definitions |
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| Abusive Registration means a Domain
Name which either: |
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| i. |
was registered or otherwise acquired
in a manner which, at the time when the registration or acquisition
took place, took unfair advantage of or was unfairly detrimental
to the Complainant's Rights; OR |
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| ii. |
has been used in a manner which took
unfair advantage of or was unfairly detrimental to the Complainant's
Rights; |
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| Complainant means a third party who
asserts to us the elements set out in paragraph 2 of this Policy
and according to the Procedure; |
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| Contract means the contract between
us and the Respondent, made up of our Terms and Conditions,
the Rules for .uk domain and sub-domains, this Policy and the
Procedure; |
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| Days means unless otherwise stated
any day other than Saturday, Sunday or any Bank or public holiday
in England and Wales; |
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| Decision means the decision reached
by an Expert and where applicable includes decisions of an appeal
panel; |
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| Dispute Resolution Service means
the service provided by us according to this Policy and the
Procedure; |
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| Domain Name means a domain name registered
in any sub-domain of the .uk domain; |
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| Expert means the expert(s) we appoint
under paragraphs 8 or 18 of the Procedure and references to
Expert where applicable also refer to the Experts appointed
under paragraph 18 of the Procedure; |
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| Informal Mediation means impartial
mediation which we conduct to facilitate an acceptable resolution
to the dispute; |
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| ISP means the internet service provider
through which the Domain Name in dispute has been registered
or is hosted; |
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| Party means a Complainant or Respondent
and 'Parties' has a corresponding meaning; |
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| Procedure means the Procedure for
the conduct of proceedings under the Dispute Resolution Service; |
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| Respondent means the person (including
a legal person) in whose name or on whose behalf a Domain Name
is registered and against whom the Complainant makes a complaint; |
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| Rights includes, but is not limited
to, rights enforceable under English law. However, a Complainant
will be unable to rely on rights in a name or term which is
wholly descriptive of the Complainant's business; |
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| we means Nominet UK (company no.
3203859) whose registered office is at Sandford Gate, Sandy
Lane West, Littlemore, Oxford, OX4 6LB and us and our have corresponding
meanings. |
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| Dispute Resolution Service |
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| a. |
A Respondent must submit to proceedings
under the Dispute Resolution Service if a Complainant asserts
to us, according to the Procedure, that: |
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i. The Complainant has Rights in
respect of a name or mark which is identical or similar to the
Domain Name; and
ii. The Domain Name, in the hands of the Respondent, is an Abusive
Registration. |
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| b. |
The Complainant is required to prove
to the Expert that both elements are present on the balance
of probabilities. |
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Evidence of Abusive Registration
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| a. |
A non-exhaustive list of factors
which may be evidence that the Domain Name is an Abusive Registration
is as follows: |
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i. Circumstances indicating that the Respondent has registered
or otherwise acquired the Domain Name:
A. primarily for the purposes of selling, renting or otherwise
transferring the Domain Name to the Complainant or to a competitor
of the Complainant, for valuable consideration in excess of
the Respondent's documented out-of-pocket costs directly associated
with acquiring or using the Domain Name;
B. as a blocking registration against a name or mark in which
the Complainant has Rights; or
C. primarily for the purpose of unfairly disrupting the business
of the Complainant;
ii. Circumstances indicating that the Respondent is using
the Domain Name in a way which has confused people or businesses
into believing that the Domain Name is registered to, operated
or authorised by, or otherwise connected with the Complainant;
iii. In combination with other circumstances indicating that
the Domain Name in dispute is an Abusive Registration, the
Complainant can demonstrate that the Respondent is engaged
in a pattern of making Abusive Registrations; or
iv. It is independently verified that the Respondent has given
false contact details to us.
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| b. |
Failure on the Respondent's part
to use the Domain Name for the purposes of e-mail or a web-site
is not in itself evidence that the Domain Name is an Abusive
Registration. |
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| How the Respondent may demonstrate
in its response that the Domain Name is not an Abusive Registration |
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A non-exhaustive list of factors
which may be evidence that the Domain Name is not an Abusive
Registration is as follows:
i. Before being informed of the Complainant's dispute, the Respondent
has:
A. used or made demonstrable preparations to use the Domain
Name or a Domain Name which is similar to the Domain Name in
connection with a genuine offering of goods or services;
B. been commonly known by the name or legitimately connected
with a mark which is identical or similar to the Domain Name;
C. made legitimate non-commercial or fair use of the Domain
Name; or
ii. The Domain Name is generic or descriptive and the Respondent
is making fair use of it. |
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| b. |
Fair use may include sites operated
solely in tribute to or criticism of a person or business, provided
that if:
i. the Domain Name (not including the first and second level
suffixes) is identical to the name in which the Complainant
asserts Rights, without any addition; and
ii. the Respondent is using or intends to use the Domain Name
for the purposes of a tribute or criticism site without the
Complainant's authorisation
then the burden will shift to the Respondent to show that the
Domain Name is not an Abusive Registration. |
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| Informal Mediation |
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| a. |
After we have received the Parties'
submissions under the Procedure, we will initiate and conduct
a period of Informal Mediation under paragraph 7 of the Procedure.
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Appointment of Expert
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| a. |
If an acceptable resolution cannot
be found by Informal Mediation we will notify the Parties that
we will appoint an Expert when the Complainant has paid the
applicable fees set out in paragraph 21(a) of the Procedure
and within the time specified in paragraph 21(c) of the Procedure.
The Expert will come to a written Decision. |
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| Notification and Publication |
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| a. |
We will communicate a Decision to
the Parties according to paragraph 17 of the Procedure and will
publish all Decisions in full on our web site. |
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| b. |
Fees are payable by the Complainant
or otherwise according to paragraph 21 of the Procedure only
if an acceptable resolution has not been reached by Informal
Mediation and once we have notified the Parties that an Expert
is to be appointed. |
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| Exclusion of Liability |
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| a. |
Neither we nor our directors, officers,
employees or servants nor any Expert shall be liable to a party
for anything done or omitted in connection with any proceedings
under the Dispute Resolution Service unless the act or omission
is shown to have been in bad faith. |
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| Appeal and Availability of Court
Proceedings |
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| a. |
Either Party will have the right
to appeal a Decision under paragraph 18 of the Procedure. The
appeal panel will consider appeals both on the basis that a
matter be re-examined on the facts, and that procedure has not
been correctly followed. |
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| b. |
We may refer questions of interpretation
of the Policy and Procedure to the appeal panel. Any decision
rendered as a result of our referral will not affect any Decision
previously made under the Dispute Resolution Service. |
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| c. |
We will publish decisions of the
appeal panel. Appeal decisions will not have precedent value,
but will be of persuasive value to Experts in future decisions. |
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| d. |
The operation of the Dispute Resolution
Service will not prevent either the Complainant or the Respondent
from submitting the dispute to a court of competent jurisdiction. |
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| Implementation of Expert Decisions
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| a. |
If the Expert makes a Decision that
a Domain Name registration should be cancelled, suspended, transferred
or otherwise amended, we will implement that Decision by making
any necessary changes to the Register according to the process
set out in paragraph 17 of the Procedure. |
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| Other action by us |
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| a. |
We will not cancel, transfer, activate,
deactivate or otherwise change any Domain Name registration
except as set out in paragraph 10 above and as provided under
[paragraph 8] of the Terms and Conditions. |
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| Transfers During a Dispute |
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| a. |
A Respondent may not transfer a Domain
Name registration: |
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i. whilst proceedings under the Dispute
Resolution Service are ongoing in relation to the Domain Name
or for a period of ten (10) Days after their conclusion, unless
to the Complainant as a result of a settlement reached between
the Parties and approved by us whether or not pursuant to Informal
Mediation; or
ii. whilst a court proceeding or arbitration in respect of the
Domain Name registration is ongoing in a court of competent
jurisdiction.
We reserve the right to reverse any transfer of a Domain
Name registration which does not comply with this paragraph.
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| b. |
A Respondent may not without the
Complainant's consent (which the Complainant will not unreasonably
withhold) transfer the hosting of a Domain Name to another ISP
whilst proceedings under the Dispute Resolution Service are
ongoing in relation to the Domain Name or for a period of ten
(10) Days after the conclusion of the Dispute Resolution Service. |
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| Modifications to the Policy and
Procedure of the Dispute Resolution Service |
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| a. |
The internet is an emerging and evolving
medium and the regulatory and administrative framework under
which we operate is constantly developing. For these reasons
we reserve the right to make reasonable modifications to the
Policy and Procedure at any time. We will only do so when we
have good reason. Except where we are acting in pursuance of
a statutory requirement or a court order, changes will be implemented
following a process of open public consultation. Each such change
will be published in advance (where practicable, 30 calendar
days in advance) on our web site: http://www.nominet.org.uk/
and will become binding and effective upon the date specified
therein. |
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| b. |
The Respondent will be bound by the
Policy and Procedure which are current at the time the Dispute
Resolution Service is commenced until the dispute is concluded. |
