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Sunrise Challenge Policy (Revised) |
[This revised version of the Policy was posted November 20, 2001, persuant to the Policy Modification provisions (see paragraph 7), and after approval by ICANN.]
1. Purpose. This Sunrise Registration Challenge Policy (the "Policy") has been adopted by Afilias. The Policy applies to domain names originally created during the Sunrise Registration Period, which began on July 25, 2001 and ended on August 31, 2001, including any subsequent transfers of such names under this policy. It is incorporated by reference into the <.info> Registration Agreement (the "Registration Agreement"). It sets forth the terms and conditions in connection with a dispute between you (as the registrant) and any party other than us (as the registrar) or the registry operator for the <.info> top-level domain (the "Registry") regarding the compliance of your registration of a second-level domain name (the "Domain Name") with the sunrise registration conditions set forth in the Registration Agreement. However, the Registry reserves the right to bring, after the conclusion of the Sunrise Challenge Period, a Challenge of Last Resort in connection with Sunrise registrations appearing to be made in violation of the sunrise registration conditions.
Proceedings under Paragraph 4 of this Policy will be conducted according to the Rules for Sunrise Registration Challenge Policy (the "Rules"), which are available at http://www.afilias.info .
2. Your Representations. By applying to register a Domain Name in accordance with the Sunrise registration conditions of the Registration Agreement, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) the registration of the Domain Name complies with the sunrise registration conditions set forth in the Registration Agreement; (c) to your knowledge, the Domain Name will not infringe upon or otherwise violate the rights of any third party; (d) you are not registering the Domain Name for an unlawful purpose; and (e) 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 registration infringes or violates someone else's rights.
3. Cancellations, Transfers, and Changes. We will cancel, transfer or otherwise make changes to a domain name registration that is subject to this Policy under the following circumstances:
a. subject to the provisions of Paragraph 6, our receipt of written or appropriate electronic instructions from you or your authorized agent to take such action; and/or
b. our receipt of an order from a court or arbitral tribunal, in each case of competent jurisdiction, requiring such action; and/or
c. our receipt of a decision requiring such action in any administrative proceeding to which you were a party and which was conducted under this Policy or a later version of this Policy adopted by Afilias.
We may also cancel, transfer or otherwise make changes to a domain name registration in accordance with the terms of the Registration Agreement or other legal requirements.
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 administered by the World Intellectual Property Organization Arbitration and Mediation Center (the "Center").
a. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (the "Challenger") asserts to the Center, in compliance with the Rules, that:
(i) at the time of your registration of the Domain Name, no current (non-expired) trademark or service mark registration was issued in your name; 1 or
(ii) the Domain Name is not identical to the textual or word elements of the trademark or service mark registration on which the registration of your Domain Name is based; 2 or
(iii) the trademark or service mark registration on which the registration of your Domain Name is based is not of national effect; 3 or
(iv) the trademark or service mark registration on which the registration of your Domain Name was based did not issue prior to October 2, 2000.
All challenges under this Policy (except the Challenge of Last Resort) must be submitted to the Center not later than one hundred and twenty (120) days after the conclusion of the Sunrise Registration Period, which is 23:59 UTC, December 26, 2001.
b. Challenger’s Compliance with the Sunrise Registration Conditions. A Challenger seeking transfer of the Domain Name is required to demonstrate, as part of the administrative proceeding and as a condition for such transfer, the Challenger’s compliance with the Sunrise registration conditions.
c. How to Demonstrate Compliance with the Sunrise Registration Conditions. To demonstrate compliance with the Sunrise registration conditions, a Party must submit, as further specified in the Rules, an original or a certified copy of a trademark or service mark certificate establishing that:
(i) at the time of the registration of the Domain Name, a trademark or service mark was registered in the name of the Party, and was current (non-expired), as evidenced by the date(s) set forth in the certificate itself; 4 and
(ii) the textual or word elements of the trademark or service mark registration are identical to the Domain Name; 5 and
(iii) the trademark or service mark registration is of national effect; 6 and
(iv) the trademark or service mark registration was issued prior to October 2, 2000.
d. Multiple Challenges. In the event more than one challenge is submitted to the Center regarding the same Domain Name, all such challenges will be queued in accordance with the date and time they were received by the Center. The first challenge to be filed will be granted priority, provided the Center is satisfied that the Challenger concerned paid the Challenger's fee in accordance with the Rules. Priority Challenge / Priority Challenger refers to a Challenge that has been given notice that it has priority under this Paragraph. Any further Challenges in the queue will be dealt with in accordance with the provision of subparagraph 4.e.
e. Decision. The challenge will be decided upon by the Center as set out in Subparagraphs (i)-(v) below. The Center's determination of whether the Sunrise registration conditions set forth in Paragraph 4(c) 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.
(i) If the Center finds that you have registered the Domain Name in compliance with the sunrise registration conditions set forth in the Registration Agreement, the Center will dismiss the Priority Challenge, as well as all other challenges in the queue, if any.
(ii) If the Center is unable to find that you have registered the Domain Name in compliance with the sunrise registration conditions set forth in the Registration Agreement, the Priority Challenge will be granted 7. 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 Paragraph 4(c), failing which Subparagraph (iii) shall apply.
(iii) If a prevailing Priority Challenger sought a cancellation or if neither Party established compliance with the sunrise registration conditions set forth in Paragraph 4(c), or if the Center is informed by the Registry that a prevailing Priority Challenger, who sought a transfer and established compliance with the sunrise registration conditions set forth in Paragraph 4(c), has failed to register the Domain Name in its name by the end of the time period stipulated in Paragraph 4(l) of this Policy, the Center shall proceed to the next Challenger in the queue, if any, seeking transfer of the Domain Name. Such Challenger shall be granted the opportunity to register the Domain Name in its name, only if such Challenger has submitted a challenge which is in formal compliance with the Policy and the Rules, the Center is satisfied that the Challenger has paid the Challenger's fee in accordance with the Rules and decides that such challenge complies with the sunrise registration conditions set forth in Paragraph 4(c). (Any such registration by a Successful Challenger will be subject to the Sunrise Registration Policy.) This procedure will be repeated until the Domain Name has been registered in the name of a Challenger in the queue, if any, or until there are no Challengers in the queue.
(iv) If, upon the expiry of the Sunrise Challenge Period there are no Challengers in the queue, the Domain Name will be made available at a later date in accordance with the Registry's procedures.
(v) As soon as a Domain Name has been registered in the name of a Challenger in accordance with the previous provisions of this Paragraph, the Registry will notify the Center thereof and any remaining challenges will be deemed terminated and no subsequent challenges allowed.
f. Initiation of Proceeding. The Rules state the process for initiating and conducting a proceeding under this Policy.
g. Consolidation. A challenge may not relate to more than one Domain Name. In the event a Challenger under this Policy submitted more than one challenge against you, either you or the Challenger may petition the Center to consolidate such disputes. The Center may consolidate before it any or all such disputes in its sole discretion, provided that the disputes being consolidated are governed by this Policy.
h. Fees. In accordance with the Rules, the submission of a challenge under this Policy (subject to any other arrangements that may apply to the submission of Challenges of Last Resort filed by the Registry), as well as the submission of a response thereto, is subject to the payment of, respectively, a Challenger's fee and a Respondent's fee in the amount of USD 295, subject to the provisions of Rules, Paragraph 13. All payments are to be made by credit card. If a challenge is submitted, but the Challenger's fee is not paid in accordance with the Rules, the challenge will be dismissed on the basis of the Challenger's failure to pay its fee. If the Respondent's fee is not paid in accordance with the Rules, the challenge will be granted on the basis of the Respondent's failure to pay its fee, provided the challenge is in formal compliance with the Policy and Rules. If the Challenger has requested transfer of the Domain Name, that transfer will be subject to the Center's decision that the challenge complies with the Sunrise registration conditions set forth in Paragraph 4(c). The Rules describe the circumstances under which either the Challenger or the Respondent will be entitled to a reimbursement of the fees paid.
i. Our Involvement in Administrative Proceedings. We do not, and will not, participate in the administration or conduct of any proceeding before the Center under this Policy. In addition, we will not be liable as a result of any decisions rendered by the Center. The Registry reserves the right to bring, after the conclusion of the Sunrise Challenge Period, a Challenge of Last Resort, as set forth in Paragraph 1.
j. Remedies. The remedies available to a Challenger shall be limited to requiring the cancellation of your Domain Name registration or the transfer of your Domain Name registration to the Challenger.
k. Notification. The Center shall notify any decision made under this Policy with respect to a Domain Name you have registered with us in accordance with the Rules.
l. Implementation of the Decision. The Center will notify its decision to the Registry for implementation. If the Center decides that the domain name be transferred to the Challenger, 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 update all WHOIS information, at the registrar of its choice, within 30 days of the date on which the notification of the authorization code is sent to the Challenger, in accordance with and subject to the Sunrise registration conditions set forth in the Registration Agreement. The Challenger must update all WHOIS information to be in compliance with the original Sunrise terms pertaining to the transferred Domain Name within the above-mentioned 30 day time period.
m. Request for Information. Afilias reserves the right to request and verify information under Paragraph 4(c) of this Policy directly from any party at any time.
5. Maintaining the Status Quo. Except as may be required by other policies or legal requirements, we will not cancel, transfer, activate, deactivate, or otherwise change the status of any Domain Name registration subject to this Policy, except as provided in Paragraph 3 and 4 above and 6 below.
6. Transfers During a Dispute.
a. Transfers of a Domain Name to a New Holder. You may not transfer your Domain Name registration that is subject to this Policy to another holder until all challenges brought pursuant to this Policy in relation to this Domain Name have been resolved, except that a transfer may be made to the Priority Challenger in a pending administrative proceeding under this Policy (e.g., in the event of a settlement of the dispute), provided that the Center decides that the challenge complies with the Sunrise registration conditions set forth in Paragraph 4(c). Any registration pursuant to such transfer will be subject the sunrise registration conditions set forth in the Registration Agreement.
b. Changing Registrars. You may not transfer your Domain Name registration that is subject to this Policy to another registrar until all challenges pursuant to this Policy have been resolved.
7. Policy Modifications.
Afilias reserves the right to modify this Policy at any time with the permission of ICANN. We will post the revised Policy at http://www.afilias.info at least fifteen (15) days before it becomes effective. Unless this Policy has already been invoked by the submission of a challenge to the Center, 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 the change. In the event that you object to a change in this Policy, your sole remedy is to cancel your Domain Name registration with us, provided that 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 your Domain Name registration.
1 A registration in the supplemental register of the United States Patent and Trademark Office does not qualify as such registration.
2 Identity will be deemed to exist also where there is a space between the textual or word elements of the mark (e.g., service mark) and a hyphen is used or the elements are combined in the Domain Name (e.g., service-mark.info or servicemark.info). In all other respects, the Domain Name must be identical to the textual or word elements of the mark.
3 For instance, European Community Trademarks meet the condition of national effect, but United States state trademarks or service marks do not.
4 Reference is made to footnote 1.
5 Reference is made to footnote 2.
6 Reference is made to footnote 3.
7 The Center will be unable to find that you have registered the Domain Name in compliance with the sunrise registration conditions set forth in the Registration Agreement if inter alia you fail to pay the Respondent's fee referred to in Paragraph 4(h) of this Policy.