What
is the ICANN Dispute Resolution Policy?
In
1999 ICANN (Internet Corporation for Assigned Names and Numbers)
adopted a Uniform domain name Dispute Resolution Policy (UDRP) for
generic top level domains, such as .com, .net and .org. This
policy has also been adopted by a few country code TLDs. The
process involves a relatively quick and economical online
mandatory arbitration by a single arbitrator or a panel of an
approved organization. To date, the UDRP has been helpful to
complainants in obtaining quick recourse in obvious cases of bad
faith registration and use.
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What procedure will there be for resolving
disputes in the .ca registry?
Complainants
and domain name registrants may use consensual arbitration,
mediation or any other process they may agree on to resolve
disputes between them pertaining to a domain name registered with
CIRA. Where the registrant does not consent to the use of a
dispute resolution mechanism, a complainant may bring the dispute
to a court of competent jurisdiction or invoke CIRA's dispute
resolution policy.
The
proposed CIRA Dispute Resolution Policy (CDRP) is modeled on the
ICANN UDRP, but with modifications tailored to Canadian laws and
rights, as well as CIRA's Canadian Presence Requirements. The CDRP
will provide a forum where clear cases of bad faith registration
of domain names can be dealt with relatively inexpensively and
expeditiously. In its current form, the CDRP applies to cases of
bad faith registration of the domain name. Bad faith use is not
required, as it is under ICANN, but this issue is one on which
comment is explicitly invited in the public consultation on the
CDRP.
The
CDRP will be carried out in accordance with CIRA CDRP Rules
(Procedural Rules). The Procedural Rules will probably also be
modeled on the ICANN UDRP Rules, although modified for the CIRA
system.
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What is the substantive basis for the CDRP?
Under
the CDRP, a registrant would be required to submit to a proceeding
in the event that a complainant asserts to a provider that:
-
the registrant's .ca domain name is confusing with a trade-mark,
official mark or trade name in which the complainant has rights
in Canada;
-
the registrant has no rights in Canada or any other legitimate
interest in Canada in respect of the domain name; and
-
the registrant was, at the date of registration, acting in bad
faith in registering (and perhaps using) the domain name.
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What is bad faith?
The
CDRP sets out a number of factors to be considered, among others,
in assessing whether a registrant has registered a domain name in
bad faith. Other mitigating factors favorable to the registrant
are also enumerated to assist in determining whether a domain name
has been registered in bad faith. The specific list of factors may
be reviewed in the draft CDRP posted for consultation.
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Who can commence a proceeding?
It
is currently proposed that any person or entity may initiate a
dispute resolution proceeding by submitting a complaint in
accordance with the CDRP and the Procedural Rules. However, the
ability to file a complaint under the CDRP might be limited to
those who comply with CIRA's Canadian Presence Requirements for
registrants (CPR). This is a point on which comment is requested
in the public consultation.
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How is a procedure initiated?
A
complainant wishing to have a dispute adjudicated under the CDRP
would submit a complaint to a dispute resolution service provider
approved by CIRA. The complainant must present evidence to
establish all three elements set out in the answer to question 56
above, namely that the registrant's domain name is confusing, the
registrant has no rights, and the registrant has acted in bad
faith in registering the domain name. The registrant would then be
provided with an opportunity to respond and to provide evidence
supporting his or her right to the registration of the disputed
domain name.
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Who will hear the dispute?
It
is currently expected that the provider will select a panel to
preside over the proceeding. The panel will be required to meet
certain qualifications and will be selected from among the list of
qualified individuals. It will probably be possible to select a
panel of one or three panelists.
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Who pays?
It
is currently expected that it would be up to the complainant, when
submitting a dispute, to submit a non-refundable fee. The amount
of the fee would be based on whether a single member or
three-member panel is chosen. The cost for a three-member panel
would be greater than if a single panelist is chosen. If the
complainant opts for a single panelist and the registrant chooses
a three-member panel, the increased non-refundable cost would be
paid by the registrant.
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How is the proceeding conducted?
It
is currently expected that, after receiving the complainant's
submission, the provider will review the complaint for
administrative compliance with the CDRP and the Procedural Rules.
If the complaint complies, the provider would forward the
complaint to the registrant for response within the prescribed
time. This would start the proceeding and the time period for the
registrant's response. Unless the panel determines otherwise,
there will be no in-person hearings, as it is intended that the
vast majority of disputes will be resolved online based upon the
material filed by the parties.
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How long will the proceeding take?
Once
the complaint is submitted, it is currently expected that the
dispute would be resolved within a relatively short time period,
and the decision of the panel will be available within several
weeks. The panel's decision will be in writing and will contain
the reasons on which it is based. The decision will be published
on CIRA's web site except in exceptional cases.
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What will the decision be based on?
It
is currently expected that the panel will decide complaints on the
basis of statements and documents submitted to it in accordance
with the CDRP, the Procedural Rules and principles of Canadian
federal and provincial law it deems applicable.
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What remedies are available through the CDRP?
The
remedies available to a complainant under the CDRP and the
Procedural Rules will be limited to:
·
requiring the cancellation of the registrant's domain name
registration;
·
transfer of the registration to the complainant, subject to the
complainant qualifying under the CPR for registrants
If
any person may initiate a dispute resolution proceeding, then a
complainant who does not comply with the CPR will be entitled to
request that the registration be transferred to a nominee of the
complainant. The nominee would have to satisfy the CPR for
registrants and enter into CIRA's registrant Agreement before the
transfer could be affected.
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What if a complainant is in bad faith?
In
reaching its decision based on the above requirements, the Panel
may make a finding that the complainant commenced the proceeding
in bad faith in an attempt, unfairly and without color of right,
to cancel or obtain a transfer of a registration. Such a finding
may have a negative impact on a complainant in a subsequent
proceeding. Comments are explicitly invited on this issue in the
consultation document.
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What disputes are not covered by the CDRP?
The
CDRP would not cover disputes between parties who, in good faith,
have competing rights or claims to the domain name or its use or
to trade-marks, trade names or related rights. The CDRP would also
not be intended to resolve all issues in connection with the
registration of a domain name, or those relating to ownership,
defamation and discrimination.
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Are the courts still available?
The
availability of the CDRP would not prevent either a registrant or
a complainant from submitting a dispute between them to a court or
arbitral panel of competent jurisdiction for independent
resolution either before or after a proceeding is concluded. Under
the CDRP, the registrant must however submit to the CDRP
proceeding, if the complainant chooses that proceeding.
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When does the CDRP Procedure come in to
effect?
The
draft CDRP was posted for public consultation and comment on
September 29, 2000, and may be revised based on input from the
Internet community. The Procedural Rules, which will govern the
administration of the CDRP would then be prepared and providers
and panelists would then be engaged. It is anticipated that the
CDRP will come into effect in 2001
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