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Comments on UDRP
(at URL http://minion.netpolicy.com/dnrc/UDRPchanges929.html)
Uniform Domain Name Dispute Resolution Policy
(As Approved by ICANN on [date])
The Domain Name Rights Coalition does not feel that a Unif orm Dispute Policy should be forced on domain name registrants in any form. The mere existence of such a policy skews the playing field towards trademark holde rs, and against domain name holders. Only the domain name holder is contractual ly obligated to follow these rules, while the trademark holder has several other choices available. Further, mandating a dispute policy across all gTLDs and ac ross all registrars inhibits competition, and gives special rights to trademark holders that do not exist in any other medium.
By providing these comments, DNRC does NOT endorse a Uniform Dispute Resolution Policy if our changes are adopted. The changes below represent what we consider to be a bare minimum for even cursory p rotection of the interests of individual, small business, and non-commercial dom ain nameholders.
DNRC also would like to protest the use of a small drafting committee whose suggestions were then filtered through an ICANN attorney for dr afting. The direct intervention of a representative of the ICANN board in what s hould have been a balanced committee further slanted the outcome toward large bu siness interests.
DNRC also protests both the Uniform Dispute Resolution Poli cy and the Rules below in that they go well beyond the mandate of curtailing cyb ersquatting and reverse domain name hijacking. Reverse domain name hijacking is hardly mentioned in either the rules or the UDRP, and most of these provisions go well beyond common definitions of cybersquatting.
This Uniform Domain Name Dispute Resolution Policy (the "Policy") is incorporated by reference into your Registration Agreement, and sets forth the terms and conditions in connection with a dispute between you and any party other than us (the registrar) over the registration and use of an Internet domain name registered by you. 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 <URL>, and the selected dispute-resolution provider's supplemental rules, if any.
2. Your Representations. By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; Not even domain name or trademark attorneys can warrant that their registration will not infringe upon or violate any random third party rights anywhere in the world (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. We do not check to verify, and it is your responsibility to determine, whether your domain name registration infringes or violates someone else's rights.
3. Cancellations, Transfers, and Changes. We will cancel, transfer or otherwise make changes to domain name registrations under the following circumstances:
a. subject to the provisions of Paragraph 8, our receipt of written or appropriate electronic instructions from you or your authorized agent to take such action;
b. our receipt of an order from a court or arbitral tribunal, in each case of competent jurisdiction, requiring such action;
c. our receipt of a decision of an Administrative Panel requiring such action in any administrative proceeding to which you were a party (as explained in Paragraph 4 below); and/or
d. to comply with the resolution of a dispute concerning your domain name under another registrar's domain name dispute resolution policy that is identical to this policy in all material respects.
We may also cancel, transfer or otherwise make changes to a domain name registration in accordance with the terms of your Registration Agreement or other legal requirements.
DNRC feels that substantial due process requirements must be provided before any type of taking (as contemplated above) should be allowed
4. Mandatory Administrative Proceeding.
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 <URL> (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; This provision goes beyond US trademark law and well beyond any mandate to curtail cybersquatting. The touchstone of trademark law is confusion in the mind of the consumer as to the source of a product or service not whether or not a character string is similar or identical. In order to invoke a forced arbitration procedure, the trigger should at least comply with current laws.
(ii) you have no rights or legitimate interests in respect ofto 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 a pattern of such conduct has been established on your part; or
What is the definition of "pattern" here? Two? Twenty?
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor;
Registration of a name such as "scientology-kills.com" or "microsoftsux.com" is protected speech, yet could be said to disrupt the business of a competitor. That type of use of a domain name must be protected
(iv) by using the domain name, you have intentionally attempted to attract, for direct monetary 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. If the idea that confusion with the endorsement of a website is enough to become "bad faith" then a disclaimer on the website should be enough to dispel the allegation
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
What is a "bona fide offering?"
(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 at issue; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for direct monetary commercial gain. to misleadingly divert consumers or to tarnish the trademark or service mark.
Of course parody, political, religious, and critical speakers desire to bring consumers to their site. Some may even disparage the company associated with a trademark. This is part of the marketplace of ideas that has made the Internet a desirable medium for commerce as well as for communication. The idea that such behavior can be "bad faith" or that use of permitted speech rights should not be available as a defense to "bad faith" is a ludicrous infringement of basic human rights.
d. Selection of Provider. The Provider will be selected by [comments solicited] the domain name holder. (If this truly is a UDRP limited to clear cases of cybersquatting, then choice of provider should not matter to the Complainant. Meantime, the choice would be of vital interest to the domain name holder in that they are about to lose their "location" on the Internet, as well as all goodwill built up in that name. That Provider will administer the proceeding, except in cases of consolidation as described in Paragraph 4(f).
e. Initiation of Proceeding and Process and Selection of Administrative Panel. The Rules of Procedure state the process for initiating and conducting a proceeding and for selecting 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 selected to hear a pending dispute between the parties. This Administrative Panel may consolidate before it all such disputes in its sole discretion, provided that (i) such domain name registrations are governed by a domain name dispute resolution policy identical to this Policy in all material respects; and (ii) all of the disputes are before Providers listed at <URL>.
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 number of panelists on an Administrative Panel as provided in Paragraph 19 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.
This is a new and important area of law. All opinions must be published in order to preserve the record, and to assist domain name holders in deciding whether or not to fund an additional two panelists. This vital information must be available to attorneys advising clients, to domain name registrants, to registrars, and to trademark holders alike.
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) thirty (30) 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 Mutual Jurisdiction regarding your right to use your domain name. For purposes of this Policy, a Mutual Jurisdiction is one defined as such in the Rules of Procedure (and in which both parties are subject to court jurisdiction). If we receive such documentation within the ten (10) thirty (30) 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.
Ten days is never enough for a domain name holder to obtain an attorney, get the attorney up to speed on the issues, and have the attorney actually draft a complaint, then file that complaint in the appropriate jurisdiction. Thirty days is also far too little, but offered as a compromise position.
5. All Other Disputes and Litigation. All other disputes between you and any party other than us regarding your domain name registration that are not brought pursuant to the mandatory administrative proceeding provisions of Paragraph 4 shall be resolved between you and such other party through any court, arbitration or other proceeding that may be available.
6. Our Involvement in Disputes. We will not participate in any way in any dispute between you and any party other than us regarding the registration and use of your domain name. You shall not name us as a party or otherwise include us in any such proceeding. In the event that we are named as a party in any such proceeding, we reserve the right to raise any and all defenses deemed appropriate, and to take any other action necessary to defend ourselves.
7. Maintaining the Status Quo. We 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. You may not transfer your domain name registration to another holder (i) 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 our principal place of business) after such proceeding is concluded; or (ii) during a pending court proceeding or arbitration commenced regarding your 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. We 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. You may not transfer your domain name registration to another registrar during a pending administrative proceeding brought pursuant to Paragraph 4 or for a period of fifteen (15) calendar days (as observed in the location of our principal place of business) after such proceeding is concluded. You may transfer administration of your domain name registration to another registrar during a pending court action or arbitration, provided that the domain name you have registered with us shall continue to be subject to the proceedings commenced against you in accordance with the terms of this Policy. In the event that you transfer a domain name registration to us 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. We reserve the right to modify this Policy at any time. We will post our revised Policy at <URL> at least thirty (30) calendar days before it becomes effective. Unless this Policy has already been invoked, in which event the version of the Policy in effect at the time it was invoked will apply to you until the dispute is over, all such changes will be binding upon you with respect to any domain name registration dispute, whether the dispute arose before, on or after the effective date of our change. In the event that you object to a change in this Policy, your sole remedy is to cancel your domain name registration or transfer your domain name registration to another registrar, provided that in the event of a transfer, you will not be entitled to a refund of any fees you paid to us. The revised Policy will apply to you until you cancel or transfer your domain name registration.
There is effectively no remedy if every registrar is bound by the same dispute policy. Where could the domain name holder transfer her domain name to if every registrar's policy is "uniform?" The domain name holder is essentially held captive in a non-competitive situation with no recourse.