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Sunrise Challenge Rules (Revised) |
[This revised version of the Policy was posted November 20, 2001, persuant to the Rules (see paragraph 15), and after approval by ICANN.]
Administrative proceedings for the resolution of disputes pursuant to the revised Sunrise Registration Challenge Policy adopted by Afilias shall be governed by these Rules.
1. Definitions
In these Rules:
Center refers to the World Intellectual Property Organization Arbitration and Mediation Center.
Challenger means a party which is challenging a domain name registration under the Sunrise Registration Challenge Policy.
Challenge of Last Resort refers to a challenge initiated by the Registry after the conclusion of the Sunrise Challenge Period in connection with Sunrise registrations made in violation of the Sunrise registration conditions.
ICANN refers to the Internet Corporation for Assigned Names and Numbers.
Party means a Challenger or a Respondent.
Policy means the Sunrise Registration Challenge Policy that is incorporated by reference and made a part of the Registration Agreement.
Priority Challenge / Priority Challenger refers to a Challenge that has been given notice that it has priority under Paragraph 4 of the Policy.
Registrar means the entity with which the Respondent has registered a domain name that is the subject of a challenge.
Registration Agreement means the agreement between a Registrar and a domain name holder.
Registry means the registry operator for the <.info> top-level domain.
Respondent means the holder of a domain name registration against which a challenge is initiated.
2. Communications
(a) Except as otherwise provided in these Rules, any communication required under these Rules shall be made by electronic mail via the Internet.
(b) For the purposes of any communications to the Center, the following addresses should be used:
(i) electronic mail: see http://arbiter.wipo.int/en/domains/
(ii) facsimile transmission: see http://arbiter.wipo.int/en/domains/
(iii) postal or courier service:
WIPO Arbitration and Mediation Center
34 chemin des Colombettes
1211 Geneva 20
Switzerland
(c) All communications shall be made in the language prescribed in Paragraph 6.
(d) Either Party may update its contact details by notifying the other Party, the Center, the Registrar and the Registry.
(e) Except as otherwise provided in these Rules, all communications provided for under these Rules shall be deemed to have been made:
(i) if via the Internet, on the date that the communication was transmitted, provided that the date of transmission is verifiable; or
(ii) if by postal or courier service, on the date of mailing marked on the receipt; or
(iii) if delivered by facsimile transmission, on the date shown on the confirmation of transmission.
(f) Except as otherwise provided in these Rules, all time periods calculated under these Rules shall commence on the earliest date that the communication is deemed to have been made in accordance with Paragraph 2(e).
(g) Except as otherwise provided in these Rules, any communication by
(i) the Center, following the commencement of an administrative proceeding pursuant to Paragraph 4(c), to any Party shall be copied to the other Party; and
(ii) a Party shall be copied to the other Party and the Center.
(h) It shall be the responsibility of the sender to retain records of the fact and circumstances of sending, which shall be available for inspection by affected parties and for reporting purposes.
(i) In the event that a Party sending a communication receives notification of non-delivery of the communication, that Party shall promptly notify the Center of the circumstances of the notification.
(j) When a paper submission is to be made to the Center by a Party, it shall be submitted in three (3) sets, including the original of such submission.
3. The Challenge
(a) Any person or entity may initiate an administrative proceeding by submitting a challenge to the Center in accordance with the Policy and Rules.
(b) The challenge shall be submitted in electronic form via the Internet using the Model Challenge Form made available by the Center.
(c) The challenge shall:
(i) Request that the challenge be submitted for decision in accordance with the Policy and Rules and describe why the Domain Name registration should be considered subject to the Policy;
(ii) Provide the full name, postal and e-mail addresses, and the telephone and telefax numbers of the Challenger and of any representative authorized to act for the Challenger in the administrative proceeding;
(iii) Provide complete bank account details of the Challenger for purposes of any reimbursement of fees in accordance with Paragraph 13;
(iv) Provide the full name of the Respondent and, if different from the contact details available in the Whois database for the Domain Name, provide all information known to the Challenger regarding how to contact the Respondent or any representative of the Respondent, including contact information based on pre-challenge dealings;
(v) Specify the Domain Name that is the subject of the challenge;
(vi) Identify the Registrar with whom the Domain Name is registered at the time the challenge is filed;
(vii) Describe, in accordance with the Policy, the grounds on which the challenge is made including, in particular, why the Domain Name that is the subject of the dispute should be considered to have been registered in violation of the Sunrise registration conditions set forth in the Registration Agreement with specific reference to Policy, Paragraph 4 (a):
(1) at the time of the Respondent’s registration of the Domain Name, no current (non-expired) trademark or service mark registration was issued in the Respondent’s name; or
(2) the Domain Name is not identical to the textual or word elements of the trademark or service mark registration on which the registration of the Respondent’s Domain Name is based; or
(3) the trademark or service mark registration on which the registration of the Respondent’s Domain Name is based is not of national effect; or
(4) the trademark or service mark registration on which the registration of the Respondent’s Domain Name was based did not issue prior to October 2, 2000.
In addition, Challengers requesting transfer of the disputed Domain Name shall also specify any and all bases for such transfer with specific reference to Policy, Paragraph (4)(c).
The above description should not exceed 2000 words;
(viii) Specify, in accordance with the Policy, the remedies sought, i.e. transfer or cancellation of the Domain Name registration;
(ix) Identify any other proceedings that have been commenced or terminated in connection with or relating to the domain name that is the subject of the challenge;
(x) State that a copy of the challenge, together with the coversheet set out in Annex A hereto, has been sent or transmitted to the Respondent, the Registrar and the Registry;
(xi) Include the following statement (for Challengers seeking transfer of the Domain Name):
"Challenger certifies that the trademark or service mark forming the basis of this challenge and potential registration of the Domain Name in question was issued prior to October 2, 2000 and was current (non-expired) at the time of the registration of the Domain Name.";(xii) Include the following statement (for all Challengers):
"Challenger 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 Center, (b) the Registrar, (c) the Registry, and (d) ICANN, as well as their directors, officers, employees, and agents.Challenger certifies that the information contained in this challenge is to the best of Challenger's knowledge complete and accurate, that this challenge is not being presented for any improper purpose, such as to harass, and that the assertions in this challenge are warranted under the Sunrise Registration Challenge Policy, the Rules for Sunrise Registration Challenge Policy and under applicable law, as it now exists or as it may be extended by good-faith and reasonable argument."
(xiii) Specify the credit card (American Express, Visa or MasterCard), together with the name of the cardholder as it appears on the card, the card number and the card expiration date for purposes of payment of the Challenger’s fee in accordance with Paragraph 13 (a).
(d) The challenge may not relate to more than one Domain Name.
(e) Challengers seeking transfer of the Domain Name, shall submit to the Center the originals or certified copies of any trademark or service mark certificates required to be submitted under Paragraph 4(c) of the Policy within sixty (60) days of the commencement of the administrative proceeding, or, as the case may be, within 60 days of the notification of the opportunity to register the Domain Name in accordance with Policy, Paragraph 4(e)(iii).
4. Notification of Challenge
(a) The Center shall review the Priority Challenge for formal compliance with the Policy and the Rules. If the priority challenge is found to be in compliance with the Policy and the Rules and the Center is satisfied that the Challenger’s fee has been paid in accordance with Paragraph 13 (a), the Center shall notify the Priority Challenge to the Respondent by sending it to the e-mail addresses and telefax numbers of the administrative contact for the Domain Name, as shown in the Whois database at the time of the notification of the Priority Challenge by the Center to the Respondent. In addition, the Center shall notify the Priority Challenge to the e-mail addresses and telefax numbers of the Respondent, or of any representative of the Respondent, as provided by the Priority Challenger in accordance with Paragraph 3 (c) (iv).
(b) If the Center finds the Priority Challenge to be formally deficient, it shall promptly notify the Priority Challenger of the nature of the deficiencies identified. The Priority Challenger shall have ten (10) days after such notification within which to correct any such deficiencies, after which the administrative proceeding will be deemed terminated without prejudice to the submission of another challenge by the Challenger.
(c) The date of commencement of the administrative proceeding shall be the date the Priority Challenge is notified by the Center to the Respondent.
(d) The Center shall notify the Priority Challenger, the Respondent, the Registrar, and the Registry of the date of commencement of the administrative proceeding.
(e) If the Priority Challenger fails to remedy any deficiencies identified by the Center within the time period provided for in Paragraph 4 (b), the Center shall notify the Priority Challenger, the Respondent, the Registrar and the Registry of the deemed termination of the challenge and the fee of USD 295 paid by the Challenger pursuant to Paragraph 13 (a) of the Rules shall be deemed forfeited.
5. The Response
(a) Within ten (10) days of the date of commencement of the administrative proceeding, the Respondent shall specify the credit card (American Express, Visa or MasterCard), together with the name of the cardholder as it appears on the card, the card number and the card expiration date for purposes of payment of the Respondent’s fee in accordance with Paragraph 13 (b).
(b) Within sixty (60) days of the date of commencement of the administrative proceeding the Respondent shall submit a response to the Center.
(c) The response shall be submitted in hard copy (with annexes) by postal or courier service (postage pre-paid and return receipt requested) and in electronic form (without annexes) via the Internet using the Model Response Form made available by the Center.
(d) The response shall:
(i) Annex the originals or certified copies of any trademark or service mark certificates required to be submitted by the Respondent under Paragraph 4(b) of the Policy and respond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent to retain registration of the disputed Domain Name with specific reference to Policy, Paragraph (4) (c). Such description should not exceed 2000 words;
(ii) Provide the name, postal and e-mail addresses, and the telephone and telefax numbers of the Respondent and of any representative authorized to act for the Respondent in the administrative proceeding;
(iii) Provide complete bank account details of the Respondent for purposes of any reimbursement of fees paid by the Respondent in accordance with Paragraph 13 (c);
(iv) Identify any other proceedings that have been commenced or terminated in connection with or relating to the Domain Name that is the subject of the challenge;
(v) Include the following statement:
“Respondent certifies that the trademark or service mark forming the basis for the registration of the domain name was issued prior to October 2, 2000 and was current (non-expired) at the time of the registration of the domain name”;
(vi) Include 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 and that the assertions in this Response are warranted under the Sunrise Registration Challenge Policy, the Rules for Sunrise Registration Challenge Policy and under applicable law, as it now exists or as it may be extended by good-faith and reasonable argument."
(e) At the request of the Respondent, the Center may, in exceptional cases, extend the period of time for the filing of the response.
(f) If a Respondent does not pay the Respondent’s fee in accordance with Paragraph 13 (b) or does not submit a response, the Respondent shall be deemed to have defaulted and the remedy sought by the Priority Challenger will be granted. If the Priority Challenger has requested transfer, the transfer will be subject to a decision by the Center that the challenge complies with the Sunrise registration conditions set forth in Policy, Paragraph 4 (c), failing which Policy, Paragraph 4 (e)(iii) shall apply.
6. Language of Proceedings
(a) Unless otherwise agreed by the Center in exceptional circumstances, the language of the administrative proceeding shall be English.
(b) Any trademark or service mark certificates in a language other than English, submitted by the Challenger in accordance with Paragraph 3(e) or the Respondent in accordance with Paragraph 5 (d)(i), must be accompanied by a certified translation into English.
7. Further Statements
Unless otherwise requested or agreed by the Center in exceptional circumstances, no further statements or documents from either of the Parties are to be submitted.
8. In-Person Hearings
There shall be no in-person hearings.
9. Default
(a) In the event that a Respondent does not comply with any of the time periods established by the Rules or the Center, the Center, unless it finds exceptional circumstances apply, shall proceed to a decision on the challenge.
(b) If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Center, the Center may draw such inferences therefrom and may undertake such procedural steps as it considers appropriate.
10. Center Decisions
(a) The Center’s decision of whether the Sunrise registration conditions set forth in Paragraph 4(c) of the Policy are met will be based solely on a prima facie examination of any trademark or service mark certificates submitted in relation to the information contained in the relevant Afilias Whois database. The Center’s decision is of an administrative nature and shall be final. The Center shall not be required to state reasons for its decision.
(b) The Center will use reasonable efforts to decide upon a challenge within twenty (20) days (as observed at the Center’s place of business) of the receipt of all submissions to be made under the Policy and the Rules or of the expiry of the deadline for such submissions. The Center will also use reasonable effort to decide any Challenge of Last Resort as soon as possible under the circumstances.
(c) The Center, in its sole discretion, may prior to rendering the decision, consult relevant intellectual property offices in the context of reaching its determination.
11. Communication of Decision
(a) The Center shall communicate the decision to each Party, the Registrar, and the Registry.
(b) If the Center decides that the Domain Name be transferred to the Challenger in accordance with Policy, Paragraph 4, it shall provide the Challenger with an authorization code generated by the Registry which will allow the Challenger to register the Domain Name in its name and to update all Challenger Whois information, at the Registrar of its choice, within 30 days of the date on which the notification of the authorization is sent to the Challenger, in accordance with the Sunrise registration conditions of the Registration Agreement.
(c) In case of multiple challenges, the Center will issue the relevant notifications in accordance with Paragraph 4 (e) of the Policy.
12. Settlement or Other Grounds for Termination
(a) If the Challenger notifies the Center that the Parties have agreed on a settlement, the Center may suspend or terminate the administrative proceeding, subject to any conditions that may apply under Policy, Paragraph 6(a).
(b) If it becomes unnecessary or impossible to continue the administrative proceeding for any other reason, the Center shall terminate the administrative proceeding.
(c) In case of a termination of the administrative proceeding in accordance with (b), any fees paid by the Parties in accordance with Paragraph 13 shall be deemed forfeited.
13. Fees
(a) The filing of a challenge is subject to the payment of a Challenger’s fee in the amount of USD 295, comprising of a non-refundable fee of USD 75 and a refundable fee of USD 220. This fee is to be paid by credit card at the time of the submission of the challenge in accordance with Paragraph 3 (c)(xii). If the Center is not satisfied that the Challenger’s fee has been paid within 15 days of the filing of the challenge, the Center will dismiss the challenge on the basis of the Challenger’s failure to pay the Challenger’s fee. In case of multiple challenges, Paragraph 4 (e) of the Policy shall apply and the credit card of a Non-Priority Challenger will be debited only in the amount of the non-refundable fee of USD 75. Other arrangements may apply to the submission of Challenges of Last Resort filed by the Registry.
(b) The filing of a response is subject to the payment of a Respondent’s fee in the amount of USD 295. This fee is to be paid by credit card within ten (10) days of the date of commencement of the administrative proceeding in accordance with Paragraph 5 (a). If the Respondent fails to provide the credit card information for the payment of the Respondent’s fee within ten days of the date of commencement of the administrative proceeding, the Center will send a reminder to the Respondent requiring it to submit such payment within ten (10) further days. If the Center is not satisfied that the Respondent’s fee has been paid within this period, the challenge will be granted on the basis of the Respondent’s failure to pay its fee. If the Priority Challenger has requested transfer, this will be subject to a decision by the Center that the challenge complies with the sunrise registration conditions set forth in Policy Paragraph 4(c), failing which Policy, Paragraph 4 (e)(iii) shall apply.
(c) If a Respondent pays the Respondent’s fee and establishes that the domain name subject to the dispute has been registered in compliance with the sunrise registration conditions set forth in the Registration Agreement, the Center will reimburse the Respondent’s fee.
(d) If a Respondent pays the Respondent’s fee but fails to establish that the Domain Name subject to the dispute has been registered in compliance with the Sunrise registration conditions set forth in the Registration Agreement, the Center will reimburse the Challenger’s fee, subject to the withholding of the non-refundable fee in the amount of USD 75.
(e) If a challenge other than a Priority Challenge is dismissed by the Center in accordance with Paragraph 4 (e) (i) or (v) of the Policy, the Center shall retain only a non-refundable fee in the amount of USD 75 as referred to in (a).
(f) Under no other circumstances will a Challenger’s fee or a Respondent’s fee be reimbursed by the Center.
14. Exclusion of Liability
The Center and any intellectual property office consulted by the Center shall not be liable to a Party for any act or omission in connection with any administrative proceeding under the Policy and the Rules.
15. Amendments
The version of these Rules in effect at the time of the submission of the challenge to the Center shall apply to the administrative proceeding commenced thereby. The Registry reserves the right to modify the Rules at any time.