(a) Applicable Disputes. You are required
to submit to a mandatory administrative proceeding in the event
that a third party (a "complainant") asserts to the applicable
Provider, in compliance with the Rules of Procedure, that
(i) your domain name is identical or confusingly similar to
a trademark or service mark in which the complainant has rights;
and
(ii) you have no rights or legitimate interests
in respect of the domain name; and
(iii) your domain name has been registered
and is being used in bad faith.
In the administrative proceeding, the complainant must prove
that each of these three elements are present.
(b) Evidence of Registration and Use in Bad
Faith. For the purposes of Paragraph 4(a)(iii),
the following circumstances, in particular but without limitation,
if found by the Panel to be present, shall be evidence of the
registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you
have acquired the domain name primarily for the purpose of selling,
renting, or otherwise transferring the domain name registration
to the complainant who is the owner of the trademark or service
mark or to a competitor of that complainant, for valuable consideration
in excess of your documented out-of-pocket costs directly related
to the domain name; or
(ii) you have registered 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 registered the domain name primarily for the
purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted
to attract, for commercial gain, Internet users to your web
site or other on-line location, by creating a likelihood of
confusion with the complainant'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 Complaint.
When you receive a complaint, you should refer to Paragraph
5 of the Rules of Procedure in determining how your response
should be prepared. Any of 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 4(a)(ii):
(i) before any notice to you of the dispute, 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
(ii) you (as an individual, business, or other organization)
have been commonly known by the domain name, even if you have
acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use
of the domain name, without intent for commercial gain to misleadingly
divert consumers or to tarnish the trademark or service mark
at issue.
(d) Selection of Provider. The complainant
shall select the Provider from among those approved by ICANN by
submitting the complaint to that Provider. The selected Provider
will administer the proceeding, except in cases of consolidation
as described in Paragraph 4(f).
(e) Initiation of Proceeding and Process and
Appointment of Administrative Panel. The Rules of Procedure
state the process for initiating and conducting a proceeding and
for appointing the panel that will decide the dispute (the "Administrative
Panel").
(f) Consolidation.
In the event of multiple disputes between you and a complainant,
either you or the complainant may petition to consolidate the
disputes before a single Administrative Panel. This petition shall
be made to the first Administrative Panel appointed to hear a
pending dispute between the parties. This Administrative Panel
may consolidate before it any or all such disputes in its sole
discretion, provided that the disputes being consolidated are
governed by this Policy or a later version of this Policy adopted
by the University of the South Pacific.
(g) Fees. All fees charged by a Provider
in connection with any dispute before an Administrative Panel
pursuant to this Policy shall be paid by the complainant, except
in cases where you elect to expand the Administrative Panel from
one to three panelists as provided in Paragraph
5(b)(iv) of the Rules of Procedure, in which case all fees
will be split evenly by you and the complainant.
(h) Our Involvement in Administrative Proceedings.
We do not, and will not, participate in the administration or
conduct of any proceeding before an Administrative Panel. In addition,
we will not be liable as a result of any decisions rendered by
the Administrative Panel.
(i) Remedies. The
remedies available to a complainant pursuant to any proceeding
before an Administrative Panel shall be limited to requiring the
cancellation of your domain name or the transfer of your domain
name registration to the complainant.
(j) Notification and Publication. The
Provider shall notify us of any decision made by an Administrative
Panel with respect to a domain name you have registered with us.
All decisions under this Policy will be published in full over
the Internet, except when an Administrative Panel determines in
an exceptional case to redact portions of its decision.
(k) Availability of Court
Proceedings. The mandatory administrative proceeding requirements
set forth in Paragraph 4 shall not prevent either
you or the complainant from submitting the dispute to a court
of competent jurisdiction for independent resolution before such
mandatory administrative proceeding is commenced or after such
proceeding is concluded. If an Administrative Panel decides that
your domain name registration should be canceled or transferred,
we will wait ten (10) business days (as observed in the location
of our principal office) after we are informed by the applicable
Provider of the Administrative Panel's decision before implementing
that decision. We will then implement the decision unless we have
received from you during that ten (10) business day period official
documentation (such as a copy of a complaint, file-stamped by
the clerk of the court) that you have commenced a lawsuit against
the complainant in a jurisdiction to which the complainant has
submitted under Paragraph
3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction
is either the location of our principal office or of your address
as shown in our Whois database. See Paragraphs
1 and 3(b)(xiii)
of the Rules of Procedure for details.) If we receive such documentation
within the ten (10) business day period, we will not implement
the Administrative Panel's decision, and we will take no further
action, until we receive:
(i) evidence satisfactory to us of a resolution between the
parties;
(ii) evidence satisfactory to us that your lawsuit has been
dismissed or withdrawn; or
(iii) a copy of an order from such court dismissing your lawsuit
or ordering that you do not have the right to continue to use
your domain name.
