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Uniform Dispute Resolution Policy

To: comments@icann.org
Subject: Uniform Dispute Resolution Policy
From: Mikki Barry <ooblick@netpolicy.com>
Date: Sat, 25 Sep 1999 09:18:28 -0400
Cc: kstubbs@dninet.net

While I have posted proposed changes to the policy and the rules governing it, let me make clear that I believe no such policy should exist. Its mere existence slants the playing field dangerously towards large business interests, and against small business, individual, and non-commercial domain name holders.

Given the recent remarks of the INTA representative to the "secret drafting committee" as stated on the mailing list for the Intellectual Property Constituency, they seem to feel that if the policy isn't to their liking, they will circumvent it anyway and go directly to court. Would that the domain name holder could do the same. Unfortunately, s/he does not have that choice. Once invoked, the dispute policy will run in addition to any court procedure. From the statements of the INTA representative, the whole exercise seems to be meaningless, since if they are not satisfied, the policy will be ignored.

Given that neither INTA nor DNRC (and may others, but I will not attempt to speak for them) feel that the UDRP is adequate to fulfill the needs of our constituents, perhaps it is best to drop the entire idea, and allow the court systems and legislatures to take up these issues, as they should? Given the current changes in domain name law in the United States, it seems prudent to allow this to play out in a far more democratic forum than a small drafting committee.

Again, for your information, my proposed changes to the UDRP is attached below in HTML source. It is followed by my proposed changes to the rules. My apologies for the length of the post.

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 Draft of 9/23/99 a.m.

 Uniform Domain Name Dispute Resolution Policy

 (As Approved by ICANN Through October __, 1999)
 [The above line not to appear in NSI version]

 1. Purpose. 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.

 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; (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. [Consideration is being given to moving this paragraph to each registrar's registration agreement.]

This paragraph is inappropriate for the UDRP. If included at all, it should be worded:

Your Representation. By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent to us that (a) the statements that you made in your Registration Agreement are, to the best of your knowledge, complete and accurate; and (b) you will not knowingly use the domain name in violation of any of the laws or regulations of your jurisdiction.

 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.

This allowance for cancellation or transfer in the Registration Agreement must be changed as it is too arbitrary and capricious.

 4. Mandatory Administrative Proceeding.

This Paragraph sets forth the type of disputes for which you are required
to submit to a mandatory administrative proceeding. [This first sentence
seems slightly out of place.] These proceedings will be conducted before
one of the administrative dispute resolution service providers listed at
<URL> (each, a "Provider").

These dispute proceedings should be VOLUNTARY, not mandatory.

 a. Applicable Disputes. You are required to submit to a
mandatory administrative proceeding in the event that a third party (a
"complainant") provides proof to the applicable Provider, in compliance with the
Rules of Procedure, that 

 (i) youruse of a domain name is identical or confusingly
similar to the products or services signified by 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 or is
being used in bad faith. 

 In the administrative proceeding, the complainant will have the
burden of persuasion that each of these three elements are present.
[Consideration is being given to moving Paragraphs 4(b) and 4(c) (below)
to the Rules of Procedure. This would simplify the Policy and make it
more easily understood. On the other hand, there are countervailing
considerations. To do this, the following sentence could be added here:
"Circumstances to considered in determining whether you have rights and
legitimate interests in the domain name and whether registration and use
has been in bad faith appear in the Rules of Procedure."]

 b. Demonstration of Your Rights and Legitimate Interests
to Domain Name. Any of the following circumstances, in particular but
without limitation, if found by the Panel to be present based on its
evaluation of all evidence presented, shall demonstrate your rights or
legitimate interests to the domain name for purposes of Paragraph

 
 (i) your ownership of a subsisting trademark or
service mark registration for a mark that is substantially
</strike> to the domain name; provided, however, that the
priority date of the registration of the mark precedes [any notice to you
of the dispute][the conduct asserted in the complaint][the domain-name
registration]; or

[The bracketed language is for discussion. The feedback I have received
on "similar" vs. "identical" is contradictory. While the group suggests
the word "similar," the examples the group gives contradict that word.
"Substantially similar" is borrowed from copyright law and (at least in
the US) refers to the degree of resemblance that permits the inference
that one having access has copied. This is potentially a much broader
scope than the examples discussed, and I am concerned that that phrase
does not actually capture the group's intended consensus.

Disallowing "similar" trademarks would severely hinder both large and small business interests, in that the identical mark may already be in legitimate use as a domain name. Given that there is currently only three possibilities for generic TLDs, disallowing similar trademarks to be used as domain names would be silly.

Further, it is common practice for an Internet start up to simultaneously apply for trademark registration at the same time they apply for their domain name. Unfortunately, at least in the US, it generally takes 18 months for the registration to be completed. Application for a trademark should be evidence of "legitimate use."

The choice of similar/identical should probably govern 4(c)(4) as well. 

As to the three timing choices, see also 4(b)(ii). I recognize that
different timing considerations may apply, but they should be at least
considered together.] 

 (ii) before [any notice to you of the dispute][the
conduct asserted in the complaint][the domain-name registration] you made
substantial lawful use of a name corresponding to the domain name or made
substantial preparations toward lawful use of a name corresponding to the
domain name; or

The above is very vague. 

 (iii) you (as an individual, business, and other
organization) are commonly known by the domain name, even if you have
acquired no trademark or service mark rights; or

 (iv) you are making a legitimate noncommercial or
fair use of the domain name, without intent to misleadingly divert
consumers for commercial gain or to tarnish the trademark or service mark.

[The term "tarnish" is necessary to embody the policy established in the
Board's resolution.]

The use of "tarnish" here would substantially destroy First Amendment rights to criticism, parody, and religious or political speech. The Boards resolution also mentioned Reverse Domain Name Hijacking protections, but that isnt here either.

 c. 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 or use of a domain name in bad
faith: 

 (i) 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 

[The bracketed phrase, or some equivalent, would embody the policy
established in the Board resolution.]

 (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 

How many is a "pattern?"

<strike> (iii) you have registered the domain name
primarily for the purpose of disrupting the business of a competitor; or
</strike>
(iii) must be removed in order to preserve the rights to criticism, parody, and religious or political speech. Either that, or "competitor" must be narrowly defined.

 (iv) you have attempted to attract, for financial
gain, Internet users to your web site or other on-line location, by
intentionally creating confusion as to the source, sponsorship,
affiliation, or endorsement of a product or service advertised on your web site or location by using a domain
name that is substantially [similar][identical] to the trademark or
service mark of the complainant.

 d. Selection of Provider. The Provider to which the
Complainant submits the complaint will administer the particular
proceeding, except in cases of consolidation as described in Paragraph
4(g). [This will be different in the NSI version]
 

 e. Initiation of Proceeding and Process. 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
<0000,0000,FFFF">/P>

 f. Selection of Administrative Panel. The
Administrative Panel will consist of<strike> one three Panelists selected by the
</strike>, domain name holder.<strike> except that, at your option and expense and in accordance with
the Rules of Procedure, you may designate an alternate Provider to select
one Panelist, in which case the Administrative Panel will consist of that
Panelist and two selected by the primary Provider. </strike>

One panelist is not enough. The domain name holder should be the one who is allowed to make the choice of arbitration panels. The domain name holder is the one who will be losing his/her Internet identity.
 
 g. 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


 h. Fees. Except as provided in Paragraph 4(f), all fees
charged by a Provider in connection with any dispute before an
Administrative Panel pursuant to this Policy shall be paid by the


 i. 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.

 j. 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.

 k. Notification and Publication. The Provider shall
notify us of any decision made by one of its Administrative Panels with
respect to a domain name you have registered with us. All decisions under
this Policy will be published in full over the Internet, </strike>except when an
Administrative Panel determines in an exceptional case not to have some or
all of its decision published. Publication will occur within fourteen (14) days of the decision.

 l. 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 <strike>ten (10) thirty (30)
calendar days after being 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
<strike> ten (10) thirty (30) calendar day period official documentation (such as a copy
of a complaint, file-stamped by the clerk of the court) that a lawsuit has
been commenced by or on behalf of you, in a court having territorial
jurisdiction over the location of your address in our Whois database,
against the complainant regarding your right to use your domain name. If
we receive such a complaint, 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) we receive 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.

 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


 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) calendar days 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 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 (i) 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; and (ii) the new registrar has a domain name dispute policy under
which it will recognize and implement any decision rendered in any such
proceeding. 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.

What good is allowing someone to transfer their domain name registration to another registrar if all registrars are required to have this same dispute policy?



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Rules

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 Draft of 9/23/99 a.m.

 Rules for Uniform Domain Name Dispute Resolution Policy
 (the "Rules")

 (As Approved by ICANN Through October __, 1999)
 [The above line not to appear in NSI version]
</CENTER>

 1. Definitions

 In these Rules:

 Complainant means the party initiating a complaint concerning a domain name


 ICANN refers to the Internet Corporation for Assigned Names and Numbers. [Not in NSI


 Panel means an administrative panel appointed by a Provider to decide a complaint
concerning a domain name registration.

 Panelist means an individual appointed by a Provider to be a member of a Panel.

 Party means a Complainant or a Respondent.

 Policy means the domain name dispute resolution policy that is incorporated by reference
and made a part of the Registration Agreement.

 Provider means a dispute resolution service provider listed in the Registrar's website.

 Registrar means the entity with which the Respondent has registered a domain name that
is the subject of a complaint.

 Registration Agreement means the agreement between a Registrar and a domain name


 Respondent means the holder of a domain name registration against which a complaint is


 Reverse Domain Name Hijacking means using an adjudicative process in bad faith to
[attempt to] deprive a registered domain-name holder of a domain name without legal


[The bracketed language above is for discussion. Probably neither formulation is quite right. As
I understand it, there must be a bad-faith attempt and it must in fact be unsuccessful.]

Why only "it must be unsuccessful?" I think it should be instead:

Reverse Domain Name Hijacking means using or making threats to use an adjudicative process to deprive or attempt to deprive a registered domain name holder of a domain name without legal justification.

 2. Communications

 (a) When forwarding a complaint to the Respondent, it shall be the Provider's
 responsibility to employ any reasonably available means calculated to achieve actual
 notice to 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
 (A) shown in the domain name's registration data in Registrar's Whois database
 for the registered domain-name holder, the technical contact, and the
 administrative contact and (B) supplied by Registrar to Provider for the
 registration's billing contact; and

 (ii) sending the complaint in electronic form (including annexes to the
 extent available in that form) by e-mail to those contacts; and

 (iii) sending the complaint to any address the Respondent has notified the
 Provider it prefers and, to the extent practicable, to all other addresses provided to
 Provider by Complainant under Paragraph 3(b)(iv); and

 (iv) if the domain name (or "www." followed by the domain name)
 resolves to an active web page, sending electronic portions of the complaint to any
 e-mail address shown on that web page.

 (b) Except as provided in Paragraph 2(a), any written communication to
 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 

 <STRIKE> (iii) electronically via the Internet, provided a record of its transmission is
 available. (Email reception is inherrently unreliable, especially if the user is unsophisticated)
 
 (c) Any communication to the Provider shall be made by the means and in the
 manner (including number of copies) stated at <URL>. Any communication with the
 Panel shall be made according to the Panel's directions.

 (d) Either Party may update its contact details by notifying the Provider and the
 Registrar in accordance with Paragraph 2(c).

 (e) 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 

<STRIKE> (iii) if via the Internet, on the date that the communication was
 transmitted, provided that the date of transmission is verifiable. (see comment above)

 (f) All time periods calculated under these Rules shall begin to run on the date
 that the communication is deemed to have been made in accordance with Paragraph 2(e). 

 (g) 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.

 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 person to be contacted,
 medium, and address information) for each of (A) electronic-only material and (B)
 material including hard copy;
 (iv) Provide the name of the Respondent (domain-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 Respondent, including contact information based on pre-
 complaint dealings;

 (v) Specify the domain name(s) that is/are the subject of the complaint;

 (vi) Identify the Registrar(s) with whom the domain name(s) is/are
 registered at the time the complaint is filed;

 (vii) Specify the trademark(s) or service mark(s) on which the complaint is
 based and, for each mark, the goods or services with which the mark is used or
 intended to be used;

So when did "intent to use" come into this? If "intent to use" is allowable, then shouldnt the domain name holder be allowed to use an "intent to use" application as a showing of legitimate use?

 (viii) In no more than [number of] words per domain name, describe, in
 accordance with the Policy [and Rule __<if 4(b) and 4(c) are moved>], the
 grounds on which the complaint is made including, in particular, 

 (1) the manner in which the use of the domain name is identical or
 confusingly similar to the goods or services signified by a trademark or service mark in which the
 Complainant has rights; and 

 (2) why the Respondent (domain-name holder) should be
 considered as having no rights or legitimate interests in respect of the
 domain name(s) that is/are the subject of the complaint; and 

 (3) why the domain name should be considered as having been
 registered or being used in bad faith.

 The description should, for elements (2) and (3), discuss any aspects of Paragraphs
 [4(b) and 4(c) of the Policy <change if these are moved to the Rules>] that are
 applicable.

 (ix) Specify, in accordance with the Policy, the remedies sought;

 (x) Identify any other legal proceedings that have been commenced or
 terminated in connection with or relating to the domain name(s) that are the
 subject of the complaint;

 (xi) Certify and warrant<strike> State </strike>that a copy of the complaint, together with the Provider's cover
 sheet as posted at <URL>, has been sent or transmitted to the Respondent
 (domain-name holder), in accordance with Paragraph 2(b);

 (xii) State that Complainant will submit to suit, in a court having territorial
 jurisdiction over the location of the domain-name holder's address shown for the
 registration of the domain name in Registrar's Whois database, challenging a
 decision in the administative proceeding canceling or transferring the domain
 name or for any other suits brought regarding this process;

 (xiii) Conclude with the following statement followed by the signature of
 the Complainant or its authorized representative:

 "Complainant agrees that its claims and remedies concerning the
 registration of the domain name, the dispute, or the dispute's resolution
 shall be solely against the domain-name holder and waives all such claims
 and remedies against (a) the dispute-resolution provider, (b) the registrar,
 (c) the registry administrator, and (d) the Internet Corporation for Assigned
 Names and Numbers, as well as their directors, officers, employees, and
 agents." [For NSI version, the ICANN reference would be deleted]

 "Complanant certifies and warrants 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
 
 (xiv) Annex any documentary or other evidence, including a copy of the
 Policy applicable to the domain name(s) in dispute, any trademark 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 domain name, provided that the
 domain names are registered by the same domain-name holder.

 4. Notification of Complaint [This would be considerably different in the NSI version]

 (a) The Provider shall review the complaint for compliance with the Policy and
 these Rules and, if in compliance, shall serve the complaint on the Respondent, in the
 manner prescribed by Paragraph 2(a), within three (3) days following receipt of the fees to
 be paid by the Complainant in accordance with Paragraph 19.

 (b) If the Provider finds the complaint not to be in compliance with the Policy and
 these Rules, it will promptly notify the Complainant [and the Respondent] of the fact of
 and reasons for that finding. The administrative proceeding will be deemed dismissed
 without prejudice to submission of a different complaint by Complainant, with payment of
 a new fee.

 (c) The date of commencement of the administrative proceeding shall be the date
 on which the complaint is forwarded by the Provider to the Respondent.

 (d) The Provider shall immediately notify the Complainant, the Respondent, the
 concerned Registrar(s), and ICANN of the date of commencement of the administrative
 proceeding.

 [Note possible gaming in three-day period]

 5. The Response

 (a) Within twenty (20) business 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) In no more than [number of words], respond to the statements and
 allegations contained in the complaint and include any and all bases for the
 Respondent (domain name holder) to retain registration and use of the disputed
 domain name;

 (ii) Provide the name, postal and e-mail addresses, and the telephone and
 telefax numbers of the Respondent (domain-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;

<strike> (iv) State whether Respondent elects, at its cost, to have one Panelist in the
 administrative proceeding appointed by a Provider appearing on the list at <URL>
 selected by Respondent and, if so, identify that Provider; 
</strike>
State whether Respondent agrees or disagrees with the choice of Provider. If Respondent disagrees with the choice of Provider, Respondent may choose his or her own Provider, who shall then be utilized for the purposes of this complaint.

 (v) Identify any other legal proceedings that have been commenced or
 terminated in connection with or relating to the domain name(s) that are the
 subject of the complaint;

 (vi) State that a copy of the response has been sent or transmitted to the
 Complainant, in accordance with Paragraph 2(b); and 

 (vii) Conclude with the following statement followed by the signature of
 the Respondent or its authorized representative:

 "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

 (viii) Annex any documentary or other evidence upon which the
 Respondent relies, together with a schedule indexing such documents.
 
 (c) At the request of the Respondent, the Provider may, in exceptional cases,
 extend the period of time for the filing of the response.

 (d) 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) Each Provider shall maintain and publish a publicly available list of Panelists
 and their qualifications.

<strike> (b) In the event the response includes an election under Rule 5(b)(iv) to have one
 Panelist appointed by a Provider of Respondent's choice (the "Alternate Provider"), it
 shall be Respondent's responsibility to arrange for the Alternate Provider to notify the
 primary Provider of its appointment within the five-day period stated in Rule 6(c) and to
 pay the Alternate Provider's fee for the appointment. The primary Provider shall
 administer, and these Rules shall govern, the administrative proceeding even if an
 Alternate Provider appoints a panelist.
</strike>
 (c) Within five (5) days following receipt of the response by the Provider, or the
 lapse of the time period for the submission thereof, the Provider shall appoint Panelists
 from its list of Panelists. <strike> In the event Respondent has elected to have one Panelist
 appointed by an Alternate Provider and Provider has been notified by the Alternate
 Provider of that appointment, Provider shall appoint two Panelists. Otherwise, Provider
 shall appoint one Panelist. </strike> The Panel shall consist of<strike> the three Panelist</strike> appointed by the
 Provider<strike> and any Panelist appointed by the Alternate Provider.

 (d) 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.

 (e) In appointing a Panel, the Provider shall take into consideration factors such
 as the identity of the Parties, the circumstances underlying the complaint and the number
 of other complaints to be decided by the Panel.

 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. 

What if it is found that the Provider itself is biased?

 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.

 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 sole Panelist, 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 domain
 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 Panel 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, 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. 

Seems rather vague.

 (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)<strike> In the case of a three-member Panel,</strike> 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 and how each Panelist voted.

 (e) Panel decisions shall normally be limited to [number of] words. Any
 dissenting opinion shall accompany the majority decision and shall normally be limited to
 [number of] words. If after considering the submissions the Panel finds that the
 complaint was brought in bad faith, for example in an attempt at reverse domain name
 hijacking or was brought primarily to harass the domain-name holder, the Panel shall
 declare in its decision that the complaint was brought in bad faith and constitutes an
 abuse of the administrative proceeding.

 16. Communication of Decision to Parties
 (a) Within three (3) days of receiving the decision from the Panel, the Provider
 shall communicate the full text of the decision to each Party, the concerned Registrar(s),
 and ICANN and shall indicate the date for the implementation of the decision in
 accordance with the Policy. 

 (b) <strike> Except if the Panel determines otherwise,</strike> the Provider shall publish the
 decision and the date of its implementation on a publicly accessible website. Within fourteen days of the decision.

 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 domain 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 domain name dispute that is the subject of
 the complaint, it shall promptly notify the Panel and the Provider. 

 19. Fees

 (a) The Complainant shall pay to the Provider a fixed fee, in accordance with the
 Provider's published schedule, within the time and in the amount required. (See Annex
 A to these Rules). A Respondent electing to have an Alternate Provider <strike>appoint a
 Panelist under Rule 4(b)(iv) </strike>shall pay the Alternate Provider a fixed fee, in accordance
 with the Alternative Provider's published schedule, within the time and in the amount
 required.

 (b) No action shall be taken by the Provider on a complaint until it has received
 the fee in accordance with Paragraph 19(a).

 (c) If the Provider has not received the fee within ten (10) 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 filing of the complaint shall apply
to the administrative proceeding commenced thereby. The Provider shall retain the right to
revise, amend or modify these Rules from time to time[, with the approval of ICANN <not in
NSI version>]. 

END OF DOCUMENT.</BODY>
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