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 www.icann.org/udrp/approved-providers.htm
(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; and
(ii) you have no rights
or legitimate interests in respect of 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 you have engaged in a pattern of such conduct; or
(iii) you have registered
the domain name primarily for the purpose of disrupting the
business
of a competitor; or
(iv) by using the domain
name, you have intentionally attempted to attract, for
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.
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
(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; or
(iii) you are making
a legitimate noncommercial 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").
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
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.
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 Administrative Panel from one to three
panelists as provided in Paragraph
5(b)(iv) 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.
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) 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 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 our principal office or of your address as shown
in our Whois database. See Paragraphs
1 and 3(b)(xiii) of the Rules of Procedure for
details.) If we receive such documentation
within the ten (10) 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.
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