(As Approved by CommonName Limited on 30 March 2001)
Administrative proceedings for the resolution of disputes under the
CommonName Dispute Resolution Policy shall be governed by these Rules and
also the Supplemental Rules of the World Intellectual Property Organization
(WIPO), as posted on the WIPO web site.
1. Definitions
In these Rules:
Complainant means the party initiating a complaint concerning a Name
registration.
Mutual Jurisdiction means a court jurisdiction at the location of
either:
(a) the principal office of the Registrar; or
(b) the registrant's address
as shown in the CommonName Directory of Name registrations at the time the
complaint is submitted to the Provider.
Name refers to a Common Name,
Alternative Common Name and/or Common Name Prefix and any Suffix used therewith.
Panel means an administrative panel appointed by the Provider to decide a
complaint concerning a Name registration.
Panelist means an individual appointed
by the Provider to be a member of a Panel. Party means a Complainant or a
Respondent. Policy means the CommonName Dispute Resolution Policy that is
incorporated by reference into and made part of the Registration Agreement.
Provider means the World Intellectual Property Organization Arbitration and
Mediation Centre (WIPO).
Registrant refers to a person or entity having
registered a Name.
Registrar means CommonName. Registration Agreement means
the agreement between the Registrar and a Name holder.
Respondent means the
holder of a Name registration against which a complaint is initiated.
Supplemental Rules means the rules adopted by the Provider 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.
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 the 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 supplied by the Registrar
to the Provider; 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
supplied by the Registrar to the Provider; and
(iii) sending the complaint to
any preferred address the Respondent has notified to the Provider and, to the
extent practicable, to all other addresses provided to the Provider by the
Complainant under Paragraph 3(b)(v).
(b) Except as provided in Paragraph 2(a),
any written communication to the 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 the 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 the
person to be contacted, the medium, and address information) for each of (A)
electronic-only material and (B) material including hard copy;
(iv) Designate
whether the Complainant elects to have the dispute decided by a single-member or
a three-member Panel and, in the event the Complainant elects a three-member
Panel, provide the names and contact details of three candidates to serve as one
of the Panelists, these candidates to be drawn from the WIPO list of panelists;
(v) Provide the name of the Respondent (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 the 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 Name(s) that is/are the subject of
the complaint;
(vii) Confirm that the Name(s) is/are registered with the
Registrar;
(viii) Specify the trade mark(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 Name(s) is/are identical or confusingly similar to a
trade mark or service mark in which the Complainant has rights; and
(2) why the
Respondent (Name holder) should be considered as having no rights or legitimate
interests in respect of the Name(s) that is/are the subject of the complaint;
and
(3) why the Name(s) should be considered as having been registered or being
used in bad faith (This portion of the complaint 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 Name(s) that are the subject of the complaint;
(xii)
State that a copy of the complaint has been sent or transmitted to the
Respondent (Name holder), in accordance with Paragraph 2(b);
(xiii) Identify the
Mutual Jurisdiction (as defined in Paragraph 1) to which the Complainant will
submit, with respect to any challenge to a decision in the administrative
proceeding canceling or transferring the Name as follows:
"The Complainant
hereby designates [identify precisely the court jurisdiction] as the Mutual
Jurisdiction, for the purposes of any challenge to a decision taken in the
administrative proceeding cancelling or transferring the Name."
(xiv)
Conclude with the following statement followed by the signature of the
Complainant or its authorized representative:
"The Complainant agrees that
its claims and remedies concerning the registration of the Name, the dispute, or
the dispute's resolution shall be solely against the Name holder and waives all
such claims and remedies against (a) the Provider and panelists, except in the
case of deliberate wrongdoing, and (b) the Registrar, as well as their
directors, officers, employees, and agents."
"The 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 version of the Policy applicable to the Name(s) in dispute and any
trade mark 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 Name, provided that the Names are registered by the same Name
holder.
4. Notification of Complaint
(a) The Provider shall review the complaint
for administrative compliance with the Policy these Rules and the Supplemental
Rules, and, if in compliance, shall forward the complaint and the 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 the 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) by
forwarding the Complaint to the Respondent.
(d) The Provider shall immediately
notify the Complainant, the Respondent and the Registrar 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 (Name holder) to retain registration and use of the disputed 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 (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 the 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 the Complainant or Respondent elects a three-member Panel,
provide the names and contact details of three candidates to serve as one of the
Panelists;
(vi) Identify any other legal proceedings that have been commenced or
terminated in connection with or relating to any of the 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:
"The 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 the Complainant
has elected to have the dispute decided by a single-member Panel and the
Respondent elects a three-member Panel, the 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) The
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 are to be drawn from the WIPO 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 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 Provider or of the Panel, as the case may be, 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.
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, and the Registrar. The
Registrar shall immediately communicate to each Party and the Provider 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.
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 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 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 of 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 the
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 form part of the
CommonName™ Dispute Resolution Policy and may be modified as provided therein.
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