(see also .ASIA Pioneer Domains Program Policies, .ASIA Registry Policies Document, July 11, 2007)
1. Purpose
These Pioneer Domain Name Challenge Rules (the "Rules") are incorporated by reference in the .ASIA Pioneer Domains Program Policies established by the .ASIA Registry (the "Registry") and accepted by you as a Selected Applicant (the "Applicant") through your Proposal (the "Proposal") in relation to a .ASIA Pioneer Domain Name (the "domain name"), and set forth the terms and conditions in connection with a challenge filed against you by a third party (the "Challenger") in connection with the Proposal. Such challenge is to be filed to the Arbitration and Mediation Center of the World Intellectual Property Organization (the "Challenge Resolution Provider") and is to be decided by a Panel appointed by the Challenge Resolution Provider (the "Panel").
2. Your Representations
By submitting the Proposal, you represent and warrant to us that (a) the statements that you made in the Proposal 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 applying to register 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. It is your responsibility to determine whether your domain name infringes or violates someone else’s rights.
3. Mandatory Administrative Challenge Process
(a) Applicable Disputes
You are required to submit to a mandatory administrative Challenge Process in the event that a Challenger asserts in compliance with these Rules to the Challenge Resolution Provider that
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Challenger has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) you have applied for the domain name in bad faith.
(b) Evidence of Application in Bad Faith
For the purposes of Paragraph 3(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the application for the domain name to be in bad faith:
(i) circumstances indicating that you have applied for the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Challenger who is the owner of the trademark or service mark or to a competitor of that Challenger, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have applied for 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 applied for the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) you intend to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the Challenger’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 Challenge
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 3(a)(ii): 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 a bona fide provision of information in a way that does not interfere with the legitimate exercise by third parties of their trademark or service mark rights.
(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 Challenge Resolution Provider, the following addresses should be used:
(i) electronic mail: pioneer.asia@wipo.int
(ii) facsimile transmission: +41 22 740 3700
(iii) postal or courier service:
WIPO Arbitration and Mediation Center
34, chemin des Colombettes
1211 Geneva 20
Switzerland
(c) 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 delivered by facsimile transmission, on the date shown on the confirmation of transmission; or
(iii) if by postal or courier service, on the date of mailing marked on the receipt.
(d) 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 4(c).
(e) Except as otherwise provided in these Rules, following the commencement of a Challenge Process pursuant to Paragraph 8, any communication by
(i) a Panel to any Party shall be copied to the Challenge Resolution
Provider and to the other Party;
(ii) the Challenge Resolution Provider to any Party shall be copied to the other Party; and
(iii) a Party, shall be copied to the other Party and the Challenge Resolution Provider.
(f) 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.
(g) Paper submissions to the Challenge Resolution Provider shall be submitted in three (3) sets, including the original of such submission.
5. Language of the Challenge Process
(a) Unless otherwise determined by the Challenge Resolution Provider or the Panel in exceptional circumstances, the language of the Challenge Process shall be English.
(b) The Panel may order that any documents submitted in languages other than English be accompanied by a translation in whole or in part into English.
(a) During the Pioneer Domain Name Challenge Period (established by the Registry), any person or entity may initiate a Challenge Process by submitting a challenge to the Challenge Resolution Provider in accordance with these Rules.
(b) The challenge shall be submitted in hard copy and (except to the extent not available for annexes) by electronic mail.
(c) The challenge shall:
(i) Request that the challenge be submitted for decision in accordance with these Rules;
(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 Challenge Process;
(iii) Specify the domain name that is the subject of the challenge;
(iv) Describe, in accordance with these Rules, the grounds on which the challenge is made including, in particular,
(1) the manner in which the domain name is identical or confusingly similar to a trademark or service mark in which the Challenger has rights; and
(2) why the Applicant should be considered as having no rights or legitimate interests in respect of the domain name that is the subject of the challenge; and
(3) why the Applicant should be considered as having applied for the domain name in bad faith.
The above description should not exceed 5,000 words;
(v) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to the domain name that is subject of the challenge;
(vi) Include the following statements:
"Challenger agrees that its claims and remedies concerning the Proposal for the domain name, the challenge, or the resolution of the challenge shall be solely against the Applicant and waives all such claims and remedies against (a) the Challenge Resolution Provider and panelists, (b) the Registry, and (c) the Internet Corporation for Assigned Names and Numbers (ICANN), as well as the directors, officers, employees, and agents of each of these."
"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 these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.";
(vii) Confirm that the Challenge Deposit has been paid to the Registry; and
(viii) Annex any documentary or other evidence, including any trademark or service mark registration upon which the challenge relies, together with a schedule indexing such evidence.
(d) Provided that the domain names have been applied for by the same Applicant and that the trademark or service mark rights invoked under Paragraph 3(a)(i) are based on rights in the same trademark or service mark, a challenge may relate to more than one domain name (in which event reference to the domain name as defined in these Rules must be understood accordingly).
7. Notification of Challenge
(a) The Challenge Resolution Provider shall review the challenge for formal compliance with these Rules.
(b) If the Challenge Resolution Provider finds the challenge to be formally deficient, it shall notify the Challenger of the nature of the formal deficiencies identified. The Challenger shall have five (5) calendar days after such notification within which to correct any such formal deficiencies, failing which the challenge will be deemed withdrawn without prejudice to the submission of another challenge by the Challenger in accordance with these Rules within the Pioneer Domain Names Challenge Period. In such an event, the Challenge Resolution Provider shall notify the Challenger, the Applicant and the Registry of the deemed withdrawal of the challenge.
(c) If the Challenge Resolution Provider finds that the challenge is in compliance with these Rules, it shall forward the challenge to the Applicant, in the manner prescribed by these Rules, within three (3) calendar days following confirmation by the Registry to the Challenge Resolution Provider of the Registry’s receipt of the Challenge Deposit paid by the Challenger in accordance with Paragraph 19.
(d) The date of commencement of the Challenge Process shall be the date on which the Challenge Resolution Provider completes its responsibilities under Paragraph 7(c) in connection with forwarding the challenge to the Applicant.
(e) The Challenge Resolution Provider shall immediately notify the Challenger, the Applicant and the Registry of the date of commencement of the Challenge Process. Upon receipt of such information, the Registry shall indicate such commencement on its website and shall forward two (2) copies of the Proposal (in the original language and in any English translation at the Registry’s disposal) in relation to the domain name to the Challenge Resolution Provider.
8. The Response
(a) Within twenty (20) days of the date of commencement of the Challenge Process the Applicant shall submit a response to the Challenge Resolution Provider.
(b) The response shall be submitted in hard copy and (except to the extent not available for annexes) by electronic mail and shall:
(i) Respond specifically to the statements and allegations contained in the challenge and include any and all bases for the Applicant to prevail on the challenge (this part should not exceed 5,000 words);
(ii) Provide the name, postal and e-mail addresses, and the telephone and telefax numbers of the Applicant and of any representative authorized to act for the Applicant in the Challenge Process;
(iii) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to the domain name that is the subject of the challenge;
(iv) Conclude with the following statement followed by the signature of the Applicant or its authorized representative:
"Applicant certifies that the information contained in this Response is to the best of Applicant'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
(v) Annex any documentary or other evidence upon which the Applicant relies, together with a schedule indexing such documents.
(c) At the request of the Applicant, the Challenge Resolution Provider may, in exceptional cases, extend the period of time for the filing of the response. The period may also be extended by written stipulation between the Parties, provided the stipulation is approved by the Challenge Resolution Provider.
(d) If an Applicant does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the challenge.
9. Appointment of Panel
(a) The Challenge Resolution Provider shall maintain a published list of panelists and their qualifications. The Challenge Resolution Provider may extend or otherwise amend such list at any time.
(b) The Challenge Resolution Provider shall appoint, within ten (10) calendar days following receipt of the response by the Challenge Resolution Provider, or the lapse of the time period for the submission thereof, a single member from its list of panelists.
(c) Once the Panel is appointed, the Challenge Resolution Provider shall notify the Parties of the panelist appointed and the date by which, absent exceptional circumstances, the Panel shall forward its decision on the challenge to the Challenge Resolution Provider.
10. Impartiality and Independence
A Panel shall be impartial and independent from the Applicant, the Challenger and from the Registry and shall have, before accepting appointment, disclosed to the Challenge Resolution Provider any circumstances giving rise to justifiable doubt as to the Panel’s impartiality or independence. If, at any stage during the Challenge Process, new circumstances arise that could give rise to justifiable doubt as to the impartiality or independence of the Panel, the Panel shall promptly disclose such circumstances to the Challenge Resolution Provider. In such event, the Challenge Resolution Provider shall have the discretion to appoint a substitute Panel.
11. Communications between Parties and 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 shall be made to the Challenge Resolution Provider.
12. General Powers of the Panel
(a) The Panel shall conduct the Challenge Process in such manner as it considers appropriate in accordance with these Rules.
(b) The Panel shall ensure that the Challenge Process takes place with due expedition. It may extend, in exceptional cases, a period of time fixed by these Rules or by the Panel.
(c) The Panel shall determine the admissibility, relevance, materiality and weight of the evidence submitted by the Applicant and the Challenger.
(d) The Panel may, in exceptional circumstances, request or allow the submission of further statements or documents by the Applicant and the Challenger.
(e) There shall be no in-person hearings.
13. Transmission of the File to the Panel
The Challenge Resolution Provider shall forward the file to the Panel as soon as the Panel is appointed. The file shall include the Proposal in hardcopy and if available in electronic format as received from the Registry in accordance with Paragraph 7(e). The Proposal shall not be sent to the Challenger.
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 challenge.
(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) The Panel’s decision on the challenge shall be limited to a determination on the conditions set out in Paragraph 3 above.
(b) The Panel shall render its decision on the basis of the case file including the Proposal and in accordance with these Rules and any rules and principles of law that it deems applicable. The Panel may base its decision on any English translation received pursuant to Paragraph 7(e).
(c) In the absence of exceptional circumstances, the Panel shall forward its decision on the challenge to the Challenge Resolution Provider within fourteen (14) days of its appointment pursuant to Paragraph 9.
(d) The Panel’s decision shall be in writing, provide a brief summary of the reasons on which it is based, indicate the date on which it was rendered, and identify the name of the panelist.
(e) The Panel’s decision under these Rules shall be without prejudice to the findings and outcome of any case which may be filed by any party in relation to or in connection with the domain name under the Uniform Domain Name Dispute Resolution Policy (UDRP) or under any other policy that may apply.
16. Communication of Decision
The Challenge Resolution Provider shall communicate the outcome of the decision to the Parties, and shall communicate the decision in full to the Registry which shall follow up in accordance with its own agreed procedures.
17. Termination of Challenge Process
(a) If the Challenger notifies the Challenge Resolution Provider of its intention to withdraw the challenge, the Challenge Resolution Provider shall terminate the Challenge Process. Such notification must be submitted electronically and in hard copy signed by the Challenger.
(b) If it becomes unnecessary or impossible to continue the Challenge Process for any other reason, the Challenge Resolution Provider, or, after its appointment, the Panel shall terminate the Challenge Process.
18. Remedies
The remedies available to a Challenger pursuant to any Challenge Process before a Panel shall be limited to requiring, on the basis of the conditions of Paragraph 3, the Registry’s rejection of the Proposal.
(a) The filing of a challenge is subject to the payment of a Challenge Deposit in the amount of [USD 1,500]. This deposit is to be placed by the Challenger with the Registry, at the time of submission of the challenge in accordance with Paragraph 6(c)(vii).
(b) In case of any termination of the Challenge Process in accordance with these Rules, any deposit paid by the Challenger in accordance with this Paragraph shall be deemed forfeited in its entirety, except that if the termination occurs before the appointment of a Panel, a processing fee for the Challenge Resolution Provider in the amount of [USD 500] shall be withheld and the remaining balance of the Challenge Deposit refunded to the Challenger.
(c) The fee mentioned in Paragraph 19(a) shall be borne by the Party that did not prevail in the Challenge Process. The administration of fees shall be undertaken by the Registry in accordance with the .ASIA Pioneer Domains Program Policies and shall include its payment of the applicable fees to the Challenge Resolution Provider.
20. Effect of Court Proceedings
(a) In the event of any legal proceedings initiated prior to or during a Challenge Process involving a domain name that is the subject of the challenge, the Panel shall have the discretion to decide whether to suspend or terminate the Challenge Process, or to proceed to a decision.
(b) In the event that a Party initiates any legal proceedings during the pendency of a Challenge Process involving a domain name that is the subject of the challenge, such Party shall promptly notify the Panel and the Challenge Resolution Provider, in accordance with Paragraph 11.
21. Exclusion of Liability
(a) The Challenge Resolution Provider or the Panel shall not be liable to a Party or to the Registry for any act or omission in connection with any Challenge Process.
(b) The Registry shall not be liable as a result of any decision rendered by the Panel.
22. Amendments
The version of these Rules in effect at the time of the submission of the challenge to the Challenge Resolution Provider shall apply to the Challenge Process commenced thereby. The Registry has the right to modify the Rules at any time in consultation with the Challenge Resolution Provider.