Legal stuff you need to know
Uniform Domain Name Dispute Resolution Policy
As Approved by ICANN on October 24, 1999.
Effective 1 December 1999
This Uniform Domain Name Dispute Resolution Policy (the 'Policy') has been adopted by the Internet Corporation for Assigned Names and Numbers ('ICANN'), is incorporated by reference into the Registration Agreement, and sets forth the terms and conditions in connection with a dispute between the Registrant and any party other than Domainz (the registrar) over the registration and use of an Internet domain name registered by the Registrant. Proceedings under Paragraph 4 of this Policy will be conducted according to the Rules for Uniform Domain Name Dispute Resolution Policy (the 'Rules of Procedure'), which are available at http://www.domainz.net.nz/about/policies/uniform-dispute-resolution-policy-rules, and the selected administrative-dispute-resolution service provider's supplemental rules.
2. The Registrant's Representations
By applying to register a domain name, or by asking Domainz to maintain or renew a domain name registration, the Registrant hereby represents and warrants to Domainz that (a) the statements that the Registrant made in the Registration Agreement are complete and accurate; (b) to the Registrant's knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) the Registrant is not registering the domain name for an unlawful purpose; and (d) the Registrant will not knowingly use the domain name in violation of any applicable laws or regulations. It is the Registrant's responsibility to determine whether the domain name registration infringes or violates someone else's rights.
3. Cancellations, Transfers, and Changes
Domainz will cancel, transfer or otherwise make changes to domain name registrations under the following circumstances:
- subject to the provisions of Paragraph 8, on receipt of written or appropriate electronic instructions from the Registrant or their authorized agent to take such action;
- on receipt of an order from a court or arbitral tribunal, in each case of competent jurisdiction, requiring such action; and/or
- on receipt of a decision of an Administrative Panel requiring such action in any administrative proceeding to which the Registrant was a party and which was conducted under this Policy or a later version of this Policy adopted by ICANN. (See Paragraph 4(i) and (k) below.)
Domainz may also cancel, transfer or otherwise make changes to a domain name registration in accordance with the terms of the Registration Agreement or other legal requirements.
4. Mandatory Administrative Proceeding
This Paragraph sets forth the type of disputes for which the Registrant is required to submit to a mandatory administrative proceeding. These proceedings will be conducted before one of the administrative-dispute- resolution service providers listed at: http://www.icann.org/udrp/approved-providers.htm (each, a 'Provider').
a. Applicable Disputes
The Registrant is 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
- the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
- the Registrant has no rights or legitimate interests in respect of the domain name; and
- the 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 is 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 of a domain name in bad faith:
- circumstances indicating that the Registrant has registered or has 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 the Registrant's documented out-of-pocket costs directly related to the domain name; or
- the Registrant has 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 the Registrant has engaged in a pattern of such conduct; or
- the Registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
- by using the domain name, the Registrant has intentionally attempted to attract, for commercial gain, Internet users to their 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 their web site or location or of a product or service on their web site or location.
c. How to Demonstrate the Registrant's Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint.
When the Registrant receives a complaint, the Registrant should refer to Paragraph 5 of the Rules of Procedure in determining how their 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 the Registrant's rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):
- before any notice to the Registrant of the dispute, the registrant's 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
- the Registrant (as an individual, business, or other organization) has been commonly known by the domain name, even if the Registrant has acquired no trademark or service mark rights; or
- the Registrant is making a legitimate non-commercial 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').
In the event of multiple disputes between the Registrant and a complainant, either the Registrant 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.
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 the Registrant elects to expand the Administrative Panel from one to three panellists as provided in Paragraph 5(b)(iv) of the Rules of Procedure, in which case all fees will be split evenly by the Registrant and the complainant.
h. Domainz' Involvement in Administrative Proceedings
Domainz do not, and will not, participate in the administration or conduct of any proceeding before an Administrative Panel. In addition, Domainz will not be liable as a result of any decisions rendered by the Administrative Panel.
The remedies available to a complainant pursuant to any proceeding before an Administrative Panel shall be limited to requiring the cancellation the Registrant's domain name or the transfer of the domain name registration to the complainant.
j. Notification and Publication
The Provider shall notify Domainz of any decision made by an Administrative Panel with respect to a domain name the Registrant has registered with Domainz. 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 the Registrant 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 the domain name registration should be cancelled or transferred, Domainz will wait ten (10) business days (as observed in the location of Domainz's principal office) after Domainz are informed by the applicable Provider of the Administrative Panel's decision before implementing that decision. Domainz will then implement the decision unless Domainz have received from the Registrant 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 the Registrant has 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 the Domainz principal office or of the Registrant's address as shown in Domainz's Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure for details.) If Domainz receive such documentation within the ten (10) business day period, Domainz will not implement the Administrative Panel's decision, and Domainz will take no further action, until Domainz receive
- evidence satisfactory to Domainz of a resolution between the parties;
- evidence satisfactory to Domainz that the lawsuit has been dismissed or withdrawn; or
- a copy of an order from such court dismissing the Registrant's lawsuit or ordering that the Registrant does not have the right to continue to use the domain name.
5. All Other Disputes and Litigation
All other disputes between the Registrant and any party other than Domainz regarding the domain name registration that are not brought pursuant to the mandatory administrative proceeding provisions of Paragraph 4 shall be resolved between the Registrant and such other party through any court, arbitration or other proceeding that may be available.
6. Domainz Involvement in Disputes
Domainz will not participate in any way in any dispute between the Registrant and any party other than Domainz regarding the registration and use of the domain name. The Registrant shall not name Domainz as a party or otherwise include Domainz in any such proceeding. In the event that Domainz are named as a party in any such proceeding, Domainz reserve the right to raise any and all defences deemed appropriate, and to take any other action necessary to defend itself.
7. Maintaining the Status Quo
Domainz will not cancel, transfer, activate, deactivate, or otherwise change the status of any domain name registration under this Policy except as provided in Paragraph 3 above.
8. Transfers During a Dispute
a. Transfers of a Domain Name to a New Holder
The Registrant may not transfer the domain name registration to another holder
- during a pending administrative proceeding brought pursuant to Paragraph 4 or for a period of fifteen (15) business days (as observed in the location of Domainz's principal place of business) after such proceeding is concluded; or
- during a pending court proceeding or arbitration commenced regarding the Registrant's domain name unless the party to whom the domain name registration is being transferred agrees, in writing, to be bound by the decision of the court or arbitrator.
Domainz reserve the right to cancel any transfer of a domain name registration to another holder that is made in violation of this subparagraph.
b. Changing Registrars
The Registrant may not transfer the domain name registration to another registrar during a pending administrative proceeding brought pursuant to Paragraph 4 or for a period of fifteen (15) business days (as observed in the location of the Domainz principal place of business) after such proceeding is concluded. The Registrant may transfer administration of the domain name registration to another registrar during a pending court action or arbitration, provided that the domain name the Registrant has registered with Domainz shall continue to be subject to the proceedings commenced against the Registrant in accordance with the terms of this Policy. In the event that the Registrant transfers a domain name registration to Domainz during the pendency of a court action or arbitration, such dispute shall remain subject to the domain name dispute policy of the registrar from which the domain name registration was transferred.
9. Policy Modifications
Domainz reserve the right to modify this Policy at any time with the permission of ICANN. Domainz will post the revised Policy here at least thirty (30) calendar days before it becomes effective. Unless this Policy has already been invoked by the submission of a complaint to a Provider, in which event the version of the Policy in effect at the time it was invoked will apply to the Registrant until the dispute is over, all such changes will be binding upon the Registrant with respect to any domain name registration dispute, whether the dispute arose before, on or after the effective date of the change. In the event that the Registrant objects to a change in this Policy, the Registrant's sole remedy is to cancel the domain name registration with Domainz, provided that the Registrant will not be entitled to a refund of any fees the Registrant paid to Domainz. The revised Policy will apply to the Registrant until the Registrant cancels the domain name registration.