Domain name dispute arbitration and mediation
DomainAvenue.com will walk you
through the various steps and help you deal with all the legal and technical
issues throughout the process of claiming your domain name back. This is why
it is highly recommended that you do it through us.
Nature of domain name disputes
While designed to serve the function of enabling users to locate computers
(and people) in an easy manner, domain names have acquired a further
significance as business identifiers and, as such, have come into conflict
with the system of business identifiers that existed before the arrival of the
Internet and that are protected by intellectual property rights.
Domain name disputes arise largely from the practice of cybersquatting,
which involves the pre-emptive registration of trademarks by third parties
as domain names. Cybersquatters exploit the first-come, first-served nature
of the domain name registration system to register names of trademarks,
famous people or businesses with which they have no connection. Since
registration of domain names is relatively simple, cybersquatters can register
numerous examples of such names as domain names. As the holders of these
registrations, cybersquatters often then put the domain names up for auction,
or offer them for sale directly to the company or person involved, at prices
far beyond the cost of registration. Alternatively, they can keep the
registration and use the name of the person or business associated with
that domain name to attract business for their own sites.
Domain name disputes in the seven new gTLDs are also subject to the
Uniform Domain Name Dispute Resolution Policy (UDRP). In addition, most
of these new registry operators have developed, or are in the process of
developing, specific dispute resolution policies designed to resolve disputes
occurring during a start-up, or "sunrise" phase. WIPO currently administers
challenges under these start-up phases for both .info and .biz. Registries
that are restricted to certain purposes will also provide special proceedings
to resolve disputes concerning compliance with their respective registration
Why so many disputes
There is no agreement within the Internet community that would allow
organizations that register domain names to pre-screen the filing of
potentially problematic names. The reasons vary, ranging from allowing
easy registrations to stimulate business, to the practical difficulties
involved in determining who holds the rights to a name, to the principle
of freedom of expression. Furthermore, the increasing business value of
domain names on the Internet has led to more cybersquatting, which results
in more disputes and litigation between the cybersquatters and the businesses
or individuals whose names have been registered in bad faith.
How to get involved in resolution of disputes
Through DomainAvenue.com, you can
initiate the resolution of disputes process with the
World Intellectual Property Organization (WIPO). DomainAvenue.com
will plan and follow for you all the necessary procedures for claiming
your domain name back if you are able to provide clear evidence of
relevant trademark or copyright ownership.
What is the UDRP
The UDRP is the Uniform Dispute Resolution Policy, adopted by the Internet
Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999.
The UDRP is based on recommendations made by WIPO in the Report on the
First WIPO Internet Domain Name Process, focusing on the problems caused
by the conflict between trademarks and domain names. A number of further
issues identified in that Report that were considered to be outside the
scope of the First WIPO Process have been addressed in the subsequent
Report of the Second WIPO Internet Domain Name Process.
How does the UDRP work
In the event that a trademark holder considers that a domain name registration
infringes on its trademark, he may initiate a proceeding under the Uniform
Dispute Resolution Policy (UDRP) with DomainAvenue.com.
Under the standard dispute clause of the Terms and Conditions for the
registration of a gTLD domain name, the registrant must submit to such proceedings.
The UDRP permits complainants to file a case with a resolution service
provider, specifying, mainly, the domain name in question, the respondent
or holder of the domain name, the registrar with whom the domain name was
registered and the grounds for the complaint. Such grounds include, as their
central criteria, the way in which the domain name is identical or similar
to a trademark to which the complainant has rights; why the respondent should
be considered as having no rights or legitimate interests in respect of the
domain name that is the subject of the complaint; and why the domain name
should be considered as having been registered and used in bad faith.
The respondent is offered the opportunity to defend itself against the
allegations. The provider (eg: the WIPO Arbitration and Mediation Center)
appoints a panelist who decides whether or not the domain(s) should be transfered.
What does WIPO offer as a resolution service provider
WIPO's resolution service offers highly qualified neutral panelists, thorough
and expeditious administrative procedures, and overall impartiality and
credibility. Dispute resolution at WIPO is much faster than normal litigation
in the courts. A domain name case filed with WIPO is normally concluded within
two months, using on-line procedures, whereas litigation can take much longer.
Fees are also much lower than normal litigation. There are no in-person hearings,
except in extraordinary cases. Minimal filing requirements also help reduce
costs. For resolution of a case involving one to five domain names, with a
single panelist, the current cost is US$ 1,500; for three panelists, the
total cost is US$ 3,000. For six to ten domain names, the current cost is
US$ 2,000 for a case involving a sole panelist and US$ 4,000 for a case
involving three panelists.
How much will it cost and who pays
The amount for submitting domain names for dispute resolution at WIPO
via DomainAvenue.com depends
on the number of domains included in the dispute, and the number of
panelists (one or three). The fee consists of an amount to be retained
by the Center as an administration fee and an amount to be paid to
the panelist(s) plus a small handling charge from DomainAvenue.com.
For one panelist, the amount for each complaint is USD1600 (if
less than 5 domain names) and is USD2100 (for 6 to 10 domains).
For three panelists, the amount for each complaint is USD3200 (if
less than 5 domain names) and is USD4200 (for 6 to 10 domains). There is
also a USD100 processing charge (for any number of complaints) for either case.
In terms of who pays: in the case of a single member panel the fee,
in full, is due from the complainant. If it is a three member panel,
requested by the complainant, the fee, in full, is due from the
complainant. In cases of a three member panel requested by the
respondent, the fee is split equally between the complainant and the respondent.
Who makes the decisions and how does WIPO ensure that there is no conflict of interest
WIPO's role in the dispute process is administrative. It assists the
communications between the parties and, taking into account the specific
circumstances of each dispute (such as the nationality of the parties and
the language of the proceedings) appoints an expert "neutral" or panelist
to review the dispute and issue a decision. These panelists are selected from
a roster of some 250 independent individuals qualified for deciding such
cases. Either party to the dispute may opt to have one or three panelists
assigned to the case. Panelists must confirm to WIPO the absence of any
potential conflict of interest before taking a case, as well as disclose in
a written statement any and all facts that should be considered prior to
What factors guide the panelists' decisions
The panel decides the case on the base of the criteria, which are cumulative,
contained in the UDRP Policy, which also contains practical examples of how
a party may prove its compliance with these criteria:
(1) whether the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(2) whether the respondent has any rights or legitimate interests in the domain name (for example, the legitimate offering of goods and services under the same name);
(3) whether the domain name was registered and is being used in bad faith.
Can damages be awarded
No. Under the UDRP the panelist can only decide to transfer or cancel the
domain name(s), or deny the complaint. It is not possible for the panel
to make any monetary judgments.
Are the cases and the decisions posted online
A list of cases are posted online once WIPO has registered the case. Decisions
are posted online as soon as the parties to the dispute have been notified of
the decision. It is possible to subscribe to receive daily emails of the new
decisions as they are made publicly available. Previous emails listing the
decisions are also archived online.
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