ICANN | Exhibit B to Final Report and Recommendations of the GNSO Council's Transfers Task Force

Final Report and Recommendations of the GNSO Council's Transfers Task Force
Exhibit B: Proposed Dispute Resolution Model
30 November 2002
As updated 12 February 2003

This section attempts to create a process by which Registrars could seek enforcement on specific issues directly with the appropriate Registry operator and, if necessary, escalate to a "Dispute Resolution Panel" as a final measure in the case of disputes that were not clear violations of policy. Registrars are responsible for initiating these enforcement and resolution processes.

1. There are three levels to the dispute resolution process

a. Request for enforcement

i. A Registrar may choose to file their dispute directly with the relevant Registry Operator. This is the first level of resolution, but may be appealed to the Dispute Resolution Panel.

b. Appeal to Third Party resolution

i. A Registrar dissatisfied with the findings of the Registry Operator may appeal the finding to the Dispute Resolution Panel.

c. Third party resolution

i. A Registrar may choose to file their dispute directly with the Third Party Resolution panel, in which case, they forfeit their right to an appeal and the decision of the panel is binding.

2. The Registry Operator is responsible for resolving disputes that fall under section 1.a.i above.

a. Disputes that fall under section 1.a.i are those that arise under the Registry/Registrar contracts.

3. Request for Enforcement Process

a. Registrar files a Request for Enforcement with the applicable Registry Operator.

b. Registry Operator would request all applicable documentation not already received from the Gaining and Losing Registrars within three (3) Registry business days of receipt of the request.

c. Registry would review the data in the documentation and compare such data with that contained within the authoritative Whois database. In all cases, the authoritative Whois database is that contained in the Registry Operator’s Whois database. If the Registry Operator Whois does not provide enough information to make an informed finding, the Registry Operator will rely on the data contained in the Losing Registrar’s Whois database.

d. If the data does not match, the Registry Operator should contact each Registrar and require additional documentation.

e. If the gaining Registrar cannot provide a complete FOA, where such data matches that contained within the authoritative Whois database, then the Registry Operator shall find that the transfer should be reversed.

f. If the losing Registrar cannot provide evidence that on its face demonstrated any of the factors contained in Section 3(e) above, and the gaining Registrar provides to the Registry a complete FOA, which appears accurate on its face, then the transfer should be approved.

g. If the data provided by neither Registrar appears to be either valid or conclusive on its face, then the Registry shall issue a finding of "no decision." And refers the issue to the Dispute Resolution Panel.

h. The request for enforcement process must complete within 14 business days of receipt of the request for enforcement by the Registry.

i. Fees. The gaining and losing Registrars recognize that providing this dispute resolution service may result in extra costs to the Registry Operator. As such, the issue of appropriate fees (if any) that a Registry Operator may charge, and who is responsible for such fees (if any), shall be determined by ICANN in consultation with the gTLD Registries and Registrars. In the event that any fees are assessed for providing this service, the party that loses such dispute shall be responsible for covering the entire amount of fees. Such fees shall not be passed on to the legitimate Registrant.

4. Appeal Process

a. Refer to dispute resolution panel/provider

5. Third Party Resolution

a. Refer to dispute resolution panel/provider

i. Either Registrar (Gaining or Losing) may commence a Dispute Resolution Proceeding against the other Registrar, whose specific rules or procedures should be determined by a drafting committee of the Transfer Task Force after a period of public notice and comment. The drafting committee shall keep the following principles in mind;

ii. The DRP proceeding shall be conducted by an independent neutral third party that is neither associated or affiliated with either the Losing or Gaining Registrar or the Registry Operator under which the disputed domain name is registered;

b. Under the DRP policy, the filing Registrar (the "Complainant") shall pay the initial filing fee (which shall be returned to the Complainant in the event that its challenge is successful).

c. The Registry Operator, under which the disputed domain name is registered, shall provide whatever data is needed by the Dispute Resolution Panel.

d. The sole purpose of the Dispute Resolution Panel should be to makde a determination as to whether the complainants filing has merit as by current Transfer policy and determine what resolution to the complaint will appropriately redress the problem as described in the initial filing. The DRP may not deliberate disputes that fall outside of this mandate.

e. In the event that the complaint is found to be without merit the filing Registrar shall have forfeited its initial filing fee. In addition, if the Dispute Resolution Panel makes as specific determination that that the complaint was either frivolous or brought for the purposes of harassing the "defendant", the Dispute Resolution Panel may impose sanctions or penalties on the filing Registrar as long as such fees are not explicitly and specifically recharged to the legitimate Registrant involved in the dispute. Any Such sanctions or enalties that may be imposed by the Dispute Resolution Panel shall be determined in advance by the Task force an ICANN staff-led drafting committee after public notice and comment.

f. In the event that the complaint is found to have merit, the Dispute Resolution Panel shall find in favor of the filing Registrar and shall require the following:

i. The transfer of the domain name subject to the complaint may be returned to the appropriate Registrar at no cost to the prevailing Registrar or Registrant.

ii. The defending Registrar shall reimburse the complaining Registrar for the initial filing fee. Failure to pay this fee to the complaining Registrar may result in the loss of accreditation by ICANN.

iii. If the Dispute Resolution Panel makes as specific determination that that the defending Registrar had no good faith basis for initiating the transfer, the Dispute Resolution Panel may impose additional sanctions or penalties on the defending Registrar as long as such fees are not explicitly and specifically recharged to the legitimate Registrant involved in the dispute. Such sanctions or penalties that may be imposed by the Dispute Resolution Panel shall be determined by the TF drafting committee after public notice and comment.

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