+ - 1. Definitions [haven't been revised yet -- that step comes later]
+ - new stuff
Complainant: A party bringing a Complaint under this Policy; a Complainant may be a Losing Registrar (in the case of an alleged fraudent transfer), a Gaining Registrar (in the case of an improper NACK), a Registrar of Record, or a Registrant-Claimant.
Respondent: A party against which a Complaint is brought.
Complaint: The initial document in a TDRP proceeding that provides the allegations and claims brought by the Complainant against the Respondent.
Kristine -- add a definition for (something like) adjudicator, fact-finder, etc.
1.1 Dispute Resolution Panel The Dispute Resolution Panel shall mean an administrative panel appointed by a Dispute Resolution Provider ("Provider") to decide a Request for Enforcement concerning a dispute under this Dispute Resolution Policy.
1.2 Dispute Resolution Provider 1.3 The Dispute Resolution Provider must be an independent and neutral third party that is neither associated nor affiliated with either Registrar involved in the dispute or the Registry Operator under which the disputed domain name is registered. ICANN shall have the authority to accredit one or more independent and neutral Dispute Resolution Providers according to criteria developed in accordance with this Dispute Resolution Policy.
1.4 FOA Form of Authorization - The standardized form of consent that the Gaining Registrar and Registrar of Record are required to use to obtain authorization from the Registrant or Administrative Contact in order to properly process the transfer of domain name sponsorship from one Registrar to another.
1.5 Gaining Registrar The Registrar that submitted to the Registry the request for the transfer of a domain sponsorship from the Registrar of Record.
1.6 Registrar of Record The Registrar of Record for a domain name for which the Registry received a transfer of sponsorship request.
1.7 Registrant The Registrant is the individual or organization that registers a specific domain name. This individual or organization holds the right to use that specific domain name for a specified period of time, provided certain conditions are met and the registration fees are paid. This person or organization is the "legal entity" bound by the terms of the relevant service agreement with the Registry operator for the TLD in question.
1.8 Registry (Registry Operator) The organization authorized by ICANN to provide registration services for a given TLD to ICANN-accredited Registrars
1.9 Supplemental Rules The Supplemental Rules shall mean those rules adopted by the Registry Operator, in the case of First Level disputes (as set forth below), or the Provider administering a proceeding (in the case of all other disputes) to supplement this Policy. Supplemental Rules shall be consistent with this Dispute Resolution Policy and shall cover topics such as fees, word and page limits and guidelines, the means for communicating with the Provider, and the form of cover sheets.
1.10 Transfer Policy The Policy on Transfer of Sponsorship of Registrations between Registrars which is in force as part of the Registry-Registrar Agreement executed between a Registrar and the Registry, as well as the Registrar Accreditation Agreement which is executed between ICANN and all ICANN- accredited registrars.
+ - 2. Standing (who can file) an initial dispute
2.1 A Gaining Registrar who has completed all the steps required under the IRTP for a legitimate transfer of one or more domain names from the Registrar of Record whose request has been NACKed.
2.2 A Losing Registrar who has had one or more domain names transferred from it in violation of the Transfer Policy
2.3 A Registrant or Registrant-Claimant who has had one or more domain name transfers occur, or has received one or more NACKs, without authorization. In order to file a complaint, a Registrant-Claimant must demonstrate that they have, in good faith, attempted to resolve the the problem through the Registrar.
+ - Standing (who can file) an appeal
2.4 A registrar who has already particiated in an Initial Dispute process and received a decision on the merits by the Registry or a Provider or a finding of "no decision" by the Registry.
+ - 2.3 Statute of Limitations An initial dispute must be filed no later than six (6) months after the alleged violation of the Transfer Policy.
In the case where a Registrar of Record or a Registrant Claimant alleges that a transfer was in violation of this Policy, the date the transfer was completed shall be deemed the date in which the "alleged violation" took place.
In the case where a Gaining Registrar alleges that a transfer should have taken place, the date in which the NACK (as defined below) was received by the Registry, shall be deemed the date in which the "alleged violation" took place.
+ - Types of Disputes
- Initial Disputes
- + -
A complaint under the TDRP may allege either:
- 3.1 A domain name transfer request was NACKed in violation of the Transfer Policy; or
- 3.2 A domain name was transferred in violation of the Transfer Policy.
- Appeals
- + -
An appeal under the TDRP may:
- 3.3 allege the Registry Operator’s initial decision was reached in error; or
- 3.4 contest the Registry Operator’s finding of “No Decision.”
+ - Dispute Resolution Options
- + -
4. Dispute Resolution Options—Gaining or Losing Registrars
4.1 A First-Level Dispute may be filed for disputes under Para. 3.1 or 3.2 with the Registry Operator for the TLD in question. [DELETE if Registry/1st-level layer is removed]
4.2 A Request for Enforcement may be filed for disputes under Para. 3.1 or 3.2 with a Dispute Resolution Provider.
4.3 An Appeal of a First Level Dispute decision made under Para 4.1 may only be filed with a Dispute Resolution Provider. [DELETE if Registry/1st-level layer is removed]
The decision of the Dispute Resolution Panel is final, except as it may be appealed [by a Registrant Claimant to a Dispute Resolution Panel, or] to a court of competent jurisdiction.
- + -
5. Dispute Resolution Options—Registrants and Registrant-Claimants
5.1 A Request for Enforcement may be filed for disputes under Para. 3.1 or 3.2 with a Dispute Resolution Provider by Registrants and Registrant Claimants with standing.
+ - 5.2 A Registrant or Registrant Claimant must have completed the following:
- + -
5.2.1
- Documentation of attempt to settle through Registrar
- + -
5.2.2
- Documentation of TDRP
- + -
5.2.3
- Documentation of Registrar not initiating a TDRP for you
- Drafting note: these are the hoops they need to go through -- extract from WG notes
5.3 The Decision of the Dispute Resolution Panel is final, except as it may be appealed to a court of competent jurisdiction
- + -
5.2.1
+ - 5. Remedies
The remedies are limited to (1) approving the transfer request or (2) reversing a fraudulently transferred domain name back to the Losing Registrar. In the event the data prove inconclusive, a Registry Operator may issue a finding of “No Decision.”
A Dispute Resolution Panel may not issue a finding of "no decision." It must weigh the applicable evidence in light of the Transfer policies and determine, based on a preponderance of the evidence, which Registrar should prevail in the dispute and what resolution to the Complaint will appropriately redress the issues set forth in the Complaint.
+ - Reverse/deny the transfer
+ - 3.3.2 If the Gaining Registrar cannot provide a complete FOA with data matching that contained within the authoritative Whois database, then the Registry Operator shall find that the transfer should be reversed.
In the case of a thick Registry, if the Registrar of Record's Whois is not accessible or invalid, the Registry Operator's Whois should be used.
In the case of a thin Registry, if the Registrar of Record's Whois is not accessible or is invalid, the Registry Operator must notify ICANN and place the dispute on hold until such time as the specific problem is resolved by ICANN.
+ - Approve the transfer
3.3.3 In the case where a Registrar of Record denies a request for a domain name transfer ("NACKs"), the Registrar of Record must provide evidence of one of the factors for which it is allowed to NACK.
If the Registrar of Record cannot provide evidence that demonstrates any of the factors, and the Gaining Registrar provides to the Registry a complete FOA with data matching that contained within the authoritative Whois database, then the transfer must be approved to be processed.
+ - More information required
(i) If the data does not match the data listed in authoritative Whois, the Dispute Resolution Panel should contact each Registrar and require additional documentation.
+ -
No decision [DELETE is the Registry/1st-level layer is removed]
3.3.4 If the data provided by neither Registrar appears to be conclusive, then the Registry shall issue a finding of "no decision." If the data provided to the Registry is complete and provides sufficient basis for a determination based on the Policy, the Registry may not issue a finding of "no decision." Either Registrar shall be able to appeal such issue to a Second-Level Dispute Resolution Provider in accordance with the provisions set forth below.
(iv) Unlike under the First-Level dispute process, the Dispute Resolution Panel may not issue a finding of "no decision." It must weigh the applicable evidence in light of the Transfer policies and determine, based on a preponderance of the evidence, which Registrar should prevail in the dispute and what resolution to the Request for Enforcement will appropriately redress the issues set forth in the Request for Enforcement.
+ - 6. General Provisions (like court availability, next steps, limitations on liability, etc)
+ -
3.4 Fees for Registrar-Initiated First-Level Dispute Resolution Service [DELETE if Registry/1st-level layer is removed]
3.4.1 There is no filing fee assessed to the Filing Registrar at the time the Request for Enforcement is submitted to the Registry Operator.
3.4.2 The Registrar that does not prevail in the dispute will be assessed a fee to be set by the Registry Operator. Such fee shall be set forth in the Registry's Supplemental Rules that are in effect at the time that the Request for Enforcement was filed.
3.4.3 This fee shall not be passed on to the Registrant.
3.4.4 This fee will be charged after a final decision is rendered by the Registry. In the case that the Registry issues a finding of "no decision," the Registry Operator shall collect the applicable fees from the Filing Registrar.
+ - 4.4 Fees for Dispute Resolution Service
- + -
Dispute provders determine fee schedule
4.4.1 In the case of either a Request for Enforcement or an Appeal, the applicable Dispute Resolution Provider shall determine the applicable filing fee ("Filing Fee"). The specific fees along with the terms and conditions governing the actual payment of such fees shall be included in the Dispute Resolution Provider’s Supplemental Rules.
- + -
If the Claimant does not prevail, they pay the fee
4.4.2 In the event that the Filing Registrar, Appellant or Registrant Claimant, whichever applicable, does not prevail in a dispute, the Filing Fees shall be retained by the Dispute Resolution Provider.
- + -
If the Registrar Claimant prevails, the losing Registrar pays
4.4.3 In the event that the Filing Registrar or Appellant, whichever applicable, prevails in a Second-Level dispute, the Respondent or Appellee, whichever applicable, must submit to the Dispute Resolution Provider, the Filing Fees within fourteen (14) calendar days after such decision. In such an event, the Dispute Resolution Provider shall refund to the Filing Registrar or Appellant, whichever applicable, the Filing Fees, no later than fourteen (14) calendar days after it receives the Filing Fees from the Respondent or Appellee. Such fees must be paid regardless of whether a Court Proceeding is commenced in accordance with Section 4.5 below. Failure to pay Filing Fees to the Dispute Resolution Provider may result in the loss of accreditation by ICANN.
- + -
If the Registrant Claimant prevails, the losing Registrar pays
4.4.3 In the event that the Registrant Claimant prevails in a dispute, the Respondent or Appellee, whichever applicable, must submit to the Dispute Resolution Provider, the Filing Fees within fourteen (14) calendar days after such decision. In such an event, the Dispute Resolution Provider shall refund to the Registrant Claimant the Filing Fees, no later than fourteen (14) calendar days after it receives the Filing Fees from the Respondent or Appellee. Such fees must be paid regardless of whether a Court Proceeding is commenced in accordance with Section 4.5 below. Failure to pay Filing Fees to the Dispute Resolution Provider may result in [the loss of accreditation by ICANN] [something really bad happening to the non-paying rascal].
+ - Availability of Court Procedings
4.5 Availability of Court Proceedings The procedures set forth herein shall not prevent a Registrar or a Registrant Claimant from submitting a dispute to a court of competent jurisdiction for independent resolution before such administrative proceeding is commenced or after such proceeding is concluded.
+ - Decision implementation
If a Dispute Resolution Panel decides a domain name registration should be transferred (either to the Gaining Registrar, or alternatively, back from the Gaining Registrar to the Registrar of Record), such Registrar will wait fourteen (14) calendar days after it is informed of the decision before implementing that decision.
The Registry will then implement the decision unless it has received from either of the parties to the dispute during that fourteen (14) calendar day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that a lawsuit has commenced with respect to the impacted domain name(s).
+ - If such documentation is received by the Registry, as applicable, within the fourteen (14) calendar day period, the decision will not be implemented until
(i) evidence is presented that the parties have resolved such dispute;
(ii) evidence is presented that the lawsuit has been dismissed or withdrawn; or
(iii) a copy of an order from such court dismissing the lawsuit or ordering certain actions with respect to the domain name.
+ - Limitations on liability
- [needs language drafted]
- Definitions
- + -
Requirements for Complaints and Appeals
+ - 3.1.2 The Complaint shall be submitted to the Registry and to the Respondent in electronic form and shall:
(i) Request that the Complaint be submitted for decision in accordance with the Registrar Transfer and Dispute Resolution Policy and the applicable Supplemental Rules;
(ii) Provide the name, postal and e-mail addresses, and the telephone and fax numbers of the Complainant and those representatives authorized by the Complainant to act on behalf of the Complainant in the administrative proceeding;
(iii) Provide the name of the Respondent and all information (including any postal and e-mail addresses and telephone and fax numbers) known to Complainant regarding how to contact Respondent or any representative of Respondent, including contact information based on pre-complaint dealings;
(iv) Specify the domain name(s) that is/are the subject of the Complaint;
(v) Specify the incident(s) that gave rise to the dispute;
(vi) Describe, in accordance with the Policy, the grounds on which the Complaint is based;
(vii) State the specific remedy being sought (either approval or denial of the transfer);
(viii) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to any of the domain name(s) that are the subject of the complaint;
+ - (ix) Certify that a copy of the Complaint, together with the cover sheet as prescribed by the Provider's Supplemental Rules, has been sent or transmitted to the Respondent; and
(x) Conclude with the following statement followed by the signature of the Complainant or its authorized representative: "<insert name of Complainant> 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 Respondent and waives all such claims and remedies against the Registry Operator as well as its directors, officers, employees, and agents, except in the case of deliberate wrongdoing or gross negligence." "<insert name of Complainant> certifies that the information contained in this Complaint is to the best of Complainant's knowledge complete and accurate, that this Complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this Complaint are warranted under this Policy and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument." 3.1.3 The Complaint may relate to more than one domain name, provided that the domain names involve the same Complainant and Respondent and that the claims arise out of the same or similar factual circumstances.
3.1.3 The Complaint may relate to more than one domain name, provided that the domain names involve the same Complainant and Respondent and that the claims arise out of the same or similar factual circumstances.
3.1.4 The Complaint shall annex the required documentary evidence (as applicable and available) in electronic form if possible, together with a schedule indexing such evidence.
- + -
Filing Administrative Check/Process?
3.1 The Registry Operator or Provider will review the Complaint for administrative compliance within five (5) calendar days of receipt of the Complaint together with full payment of fees.
3.3.1 If the data included in the Complaint does not match the data listed in the authoritative Whois, the Registry Operator must contact each Registrar and require additional documentation.
3.3.2 If the all of the elements of ^ are not provided, the Complainant will have five (5) Calendar Days to submit an amended complaint correcting the deficiencies.
4.3.7 In Appeal cases the Dispute Resolution Provider must request all documentation relating to the Initial Dispute from the applicable Registry Operator no later than seven (7) calendar days of receipt of the appeal. The Registry Operator shall submit such documentation to the Dispute Resolution Provider within seven (7) days of such request.
- + -
Response requirements
3.2 The Respondent shall have seven (7) calendar days from receipt of the Complaint to prepare a Response to the Complaint ("Response").
+ - 3.2.1 The Response shall be submitted in electronic form to both the Registry and Complainant and shall:
(i) Respond specifically to the statements and allegations contained in the Complaint (This portion of the response shall comply with any word or page limit set forth in the Registry Operator or Dispute Resolution Provider's Supplemental Rules, as the applicable);
(ii) Provide the name, postal and e-mail addresses, and the telephone and fax numbers of the Respondent;
(iii) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to any of the domain name(s) that are the subject of the Complaint;
(iv) State that a copy of the Response has been sent or transmitted to the Complainant;
(v) Conclude with 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, 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
(vi) Annex any documentary or other evidence upon which the Respondent relies, together with a schedule indexing such documents.
- + -
5. Documentary Evidence
Both the Complainant and the Respondent are required to submit evidence to support their contentions.
+ - (i) For the Respondent [formerly Gaining Registrar]:
a. Completed Form of Authorization ("FOA")
b. Copy of the Whois output for the date transfer was initiated, which was used to identify the authorized Transfer Contacts
c. Copy of evidence of identity used
d. Copy of a bilateral agreement, final determination of a dispute resolution body or court order in cases when the Registrant of Record is being changed simultaneously with a Registrar Transfer
e. Copies of all communications made to the Complainant with regard to the applicable transfer request along with any responses from the Complainant
+ - (ii) For the Complainant [formerly Registrar of Record]:
a. Completed FOA from Complainant if applicable
b. Copy of the Whois output for the date the transfer was initiated
c. Relevant history of Whois modifications made to the applicable registration
+ - d. Evidence of one of the following if a transfer was denied:
fraud; UDRP action; court order; Registrant or administrative contact identity dispute in accordance with Section 4 [Registrar of Record Requirements]; applicable payment dispute along with evidence that the registration was put on HOLD status; express written objection from the Registered Name Holder or Administrative Contact; LOCK status along with proof of a reasonable means for the registrant to remove LOCK status as per Section __of Exhibit __ to this Agreement; domain name within 60 days of initial registration; or domain name within 60 days of a prior transfer.
e. Copies of all communications made to the Respondent with regard to the applicable transfer request along with any responses from the Respondent.
- + -
6. Handling Default
3.2.3 If a Respondent does not submit a response, in the absence of exceptional circumstances, the Registry Operator or Panel shall decide the dispute based upon the Complaint.
- + -
7. Appointing a Panel
+ - 4.3.8 The Registry Operator or Dispute Resolution Panel must review all applicable documentation and reach a conclusion not later than 30 calendar days after receipt of the Appeal.
(i) The Dispute Resolution Panel may submit questions to the Registry, the Appellant or Appellee.
(ii) Responses to all such questions must be received by the Dispute Resolution Panel within 7 days.
(iii) The Dispute Resolution Panel shall review each Appeal on a De Novo basis. Although the Dispute Resolution Panel is not bound by the findings of the Registry Operator in an Appeal, it shall have the discretion to consider such findings in reaching its own conclusions. The purpose of the Dispute Resolution Panel should be to make a determination as to whether the Appeal has merit based solely on the requirements of the current Transfer policy and determine the appropriate resolution to the issues presented.
- + -
8. Issuing a Decision
Nothing in current policy -- "public posting" discussion from WG would fit here...
4.3 Appeal of First Level Dispute Decision or Registry Operator Finding of "No-Decision."
4.3.1 In the event that the Registrar which does not prevail in the First-Level dispute is dissatisfied by the Registry-Operator's decision, such Registrar may file an appeal with a Dispute Resolution Provider, provided that such appeal is filed no later than fourteen (14) calendar days after the date on which the First-Level decision was issued.
4.3.2 In the event that the Registry Operator issues a finding of "no-decision" in accordance with Section 3.3.4 above, either Registrar may file an appeal of such decision with a Dispute Resolution Provider, provided that such appeal is filed no later than fourteen (14) calendar days after the date on which the First-Level decision was issued.
4.3.3 In either case, the document submitted by the Registrar to the Dispute Resolution Provider shall be referred to as an "Appeal."
4.3.4 The Appellant shall submit the Appeal in electronic form and shall:
4.3.6 The Appeal shall annex any documentary evidence that was not already submitted to the Registry Operator during the First-Level Dispute.
- 9. Other details, like fees, language, appeals, are stays/settlements permitted
- 1. Definitions
- 2. Specific page/word counts, where to submit docs, etc.
- 3. Rules around panel appointment
- 4. Rules around extensions/stays/withdrawls
- 5. Fee chart
- + -
Drafting notes
- Mikey -- remove references to Registrant appealling dispute resolution provider decision
- Mikey -- drive in Kristine's changes in 4
- Mikey -- initial dispute, compaint, complainant, respondant
- + -
Questions for the group
Appeals of DRP decisions by Registrants? Not in this draft.
Definitions of the hoops we define in 5.2.1, 5.2.2, 5.2.3 -- we need some help here
In Registrant-initiated disputes, the Registrant pays if they lose, if they win, does the losing-Registrar pay or do the gaining/losing Registrars split the fee?