1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE WESTERN DISTRICT OF WASHINGTON 3 4 5 SERGIO SANCHEZ, 6 7 Plaintiff, Civil No. 8 9 v. 10 11 EVERGRANDE REALESTATE GROUP 12 CO., LTD., 13 14 Defendant, 15 16 CENTRAL AMERICAN DOMAIN JURY TRIAL DEMANDED 17 AUTHORITY, LTD., 18 19 Nominal Defendant. 20 21 COMPLAINT
22 Plaintiff Sergio Sanchez files this Complaint against Defendant Evergrande Realestate Group
23 Co., Ltd., and nominal defendant Central American Domain Authority Ltd.,and in support avers the
24 following:
25 I. NATURE OF THE CASE
26 1. This case is brought pursuant to 15 U.S.C. 1114(2)(D)(iv)-(v) and for declaratory relief
27 pursuant to 28 USC 2201 to establish that Plaintiff's registration and use of the internet
28 domain name
29 Consumer Protection Act (15 U.S.C. 1125(d)(“ACPA”) or otherwise under the Lanham
30 Act (15 U.S.C. 1051, et seq.); to prevent the transfer of the Domain Name to Defendant,
31 which was ordered on March 19, 2019, after the defendant filed seriatim proceedings
32 against the Plaintiff and the Central American Domain Authority Ltd., to establish that
33 the UDRP process undertaken, and the resulting decision of a panel in a third
34 administrative proceeding was in violation of Plaintiff's contractual rights, to enjoin the 1 defendant from taking any further action against Plaintiff relating to the domain name,
2 and to recover fees, costs, and damages as set forth herein.
3 II. JURISDICTION AND VENUE
4 2. This Court maintains jurisdiction over this action pursuant to 28 USC 1331 because this
5 cause arises under 15 USC 1114 in that Plaintiff is the joint registrant of a domain name
6 that has been suspended, locked, and ordered transferred under a policy provided by the
7 registrar Epik Inc. thereof relating to an alleged conflict with a trade or service mark
8 claimed by Defendant Evergrande Realestate Group Co., Ltd. (“Evergrande”). See
9 Dluhos v. Strasberg, 321 F3d 365 (3rd Cir. 2003). `
10 3. Personal jurisdiction over Defendant Evergrande exists in the Western District of
11 Washington because Evergrande expressly and voluntarily agreed to submit to the
12 jurisdiction of this Court when it initiated an administrative proceeding pursuant to the
13 UDRP concerning the domain name. Specifically, Defendant voluntarily and expressly
14 agreed in its third UDRP complaint to submit to the jurisdiction of the State of
15 Washington in connection with any legal action in any way related to the UDRP
16 proceeding. Moreover, by filing a UDRP complaint, Evergrande stipulated to be bound
17 by the following provision: “... the Complainant will submit, with respect to any
18 challenges that may be made by the Respondent to a decision by the Administrative
19 Panel to transfer the domain name that is the subject of this Complaint, to the
20 jurisdiction of the courts at the location of the principal office of the concerned
21 registrar,” to wit, Washington State. In addition, by seeking a directive for Epik Inc., in
22 the State of Washington, to expressly take the domain name registered by Plaintiff and
23 transfer it to itself, Evergrande interfered with property and contractual rights occurring
24 in the State of Washington. 1 4. Evergrande directed activity into this judicial district with the intent to deprive Plaintiff
2 of rights under a contract having a situs in this judicial district. Indeed, by seeking a
3 directive for Epik Inc. in the State of Washington to expressly take the domain name
4 registered by Plaintiff and transfer it to itself, Evergrande Real Estate Group Co. Ltd.
5 interfered with property rights occurring in the State of Washington.
6 5. Venue is proper in this Court pursuant to 28 USC 1391(b)(1) and (2).
7 III. PARTIES
8 6. Plaintiff Sergio Sanchez (“Sanchez”) is an individual who is a citizen of the Republic of
9 Nicaragua. Sanchez conducts business in both Nicaragua and Costa Rica. For the
10 purpose of this action and to obtain documents and notices in a timely manner, Sanchez
11 appointed an agent for receipt of documents: ABC Agents, PO Box 37635, Suite
12 10287, Philadelphia PA 19101.
13 7. Defendant Evergrande Realestate Group Co. Ltd. (“Evergrande”), upon information and
14 belief, is a corporation located at Excellence Houhai Financial Center, No. 1126, Haide
15 Third Road, Nanshan District, Shenzhen City, China.
16 8. Defendant Central American Domain Authority Ltd. (“CADA”) is a Colorado
17 corporation that conducts business in Nicaragua, Costa Rica, Panama, and Honduras. It
18 is named as a nominal defendant as Sanchez and CADA jointly owned the domain
19 name and because CADA was named as the respondent in the UDRP action, although
20 all filings made in the UDRP action listed both Sanchez and CADA as respondents.
21 IV. FACTS
22 9. On or about August 11, 2014, Evergrande Group Co. Ltd. of Shengan-Zone China
23 applied for and, on August 4, 2015, received an approval on the trademark “Evergrande
24 Spring” in the United States. 1 10. On or about September 3, 2014, Evergrande Group Co. Ltd. of Shengan-Zone, China,
2 applied for over fifteen (15) trademarks for the term “Evergrande Group” and “D
3 Evergrande Group” with the United States Patent and Trademark Office. However, on
4 or about May 8, 2017, Evergrande Group Co. Ltd. abandoned its trademark applications
5 for “Evergrande Group” and “D Evergrande Group.”
6 11. No trademark exists or ever existed in the United States for the term “Evergrande,”
7 “Evergrande Real Estate,” “Evergrande Real Estate Group,” or “Evergrande Group” by
8 defendant Evergrande or anyone else.
9 12. On or about April 18, 2015, a non-party Fekade Maelaku of Dafilo Brokerage registered
10 the internet domain name
11 on its parked page.
12 13. On or about October 15, 2017, Plaintiff along with CADA jointly registered the domain
13 name
14 after being retained by a freelance writer interested in forming a public interest
15 discussion site relating to the companies for consumers and others to air grievances to
16 be investigated (discussion forums), a so-called “gripe site.”
17 14. As the content for
18 parked the site with the domain registrar, Epik.com.
19 15. Epik.com's parked pages do not display advertisements resulting in revenue for the
20 domain name holder.
21 16. Epik.com's parked pages allow the domain name holder to display only two lines of
22 text.
23 17. For Plaintiff's parked page, he inserted “This website is not for sale. Informative
24 information will be published soon. All information in the public interest.” 1 18. When publishing the website, Plaintiff listed accurate contact information.
2 19. The telephone number Plaintiff listed constitutes a valid Skype-telephone number based
3 in Hong Kong which worked at the time of registration and presently.
4 20. The mailing address Plaintiff listed, Apartado 599-1250, Escazu, Costa Rica, constitutes
5 a post office box located at the Escazu post-office in the Province of San Jose Costa
6 Rica. The address received ordinary postal mail at the time of registration and
7 continues to constitute a valid mailing address.
8 21. The Escazu mailing address, being a post office box, does not receive courier packages
9 such as those from Federal Express. Rather, it constitutes a “postal address” for
10 receiving mail delivered by the government postal services.
11 22. This complies with the rules set forth by the Internet Corporation for Assigned Names
12 and Numbers (ICANN) regarding accurate “whois” registration data for domain
13 names, which is incorporated into Plaintiff's contract with Epik.com .
14 23. Specifically, the rules require the registrar to collect the “3.3.1.6 The name and postal
15 address of the Registered Name Holder.”
16 24. Neither the ICANN rules nor the Epik.com registration agreement require the domain
17 name holder to provide a physical address for courier delivery of communications.
18 25. On December 6, 2017, Defendant Evergrande, through its agent, sent an email to
19 Plaintiff using the email address
20 “evergranderealestate.com,” with the content, “Hello, may I ask if this domain name is
21 for sale, I am interested in collecting.”
22 26. Plaintiff did not reply to Defendant Evergrande's attempt to buy the domain name from
23 him.
24 27. On January 1, 2018, Defendant Evergrande's agent send an email from 1 <[email protected]>, with the title “wishs from china,” with the content, “Hello!
2 Happy new year and have a good day.”
3 28. On January 28, 2018, Defendant Evergrande initiated a domain name dispute pursuant
4 to ICANN's UDRP, as incorporated into the Epik.com registration agreement.
5 29. By doing so, Defendant Evergrande caused the domain name to be “registrar locked”
6 and unable to be transferred by the Plaintiff.
7 30. Defendant Evergrande filed its UDRP case with the Asian Domain Name Dispute
8 Resolution Center in Beijing, China, and opted for an English language proceeding.
9 The ADNDRC assigned case number CN-1801135 to the proceeding.
10 31. Defendant Evergrande alleged that it maintained the trademark “Evergrande” and
11 “Evergrande Real Estate,” that the domain name
12 similar to its trademark and confusing to consumers, and that the domain name was
13 registered in bad faith.
14 32. Defendant Evergrande falsely alleged that Plaintiff listed a false telephone number,
15 breaching the agreement with Epik.com.
16 33. Even though Plaintiff only owned the website for a few months before Defendant
17 Evergrande filed its action, it averred that not having website content constituted
18 “passively holding” the domain name in bad faith.
19 34. Plaintiff and CADA answered the UDRP Complaint and advised the panel that it
20 registered other domain names along with
21 of establishing several public interest “gripe sites,” provided evidence that the telephone
22 number was indeed accurate, and provided examples of the Plaintiff's other “gripe
23 sites.”
24 35. On March 8, 2018, a panelist in the case determined that Defendant Evergrande did 1 maintain trademarks and rights to the name
2 name
3 failed to prove that the domain name was registered in bad faith because it appeared
4 plausible that the purpose of the registration was a gripe site.
5 36. The panelist specifically chose to focus on the
6 not any other websites registered by Plaintiff despite the invitation to do so.
7 37. The panelist noted in CN-1801135 that the UDRP does not prevent either party from
8 submitting its dispute to a court of competent jurisdiction for independent resolution of
9 the issues “if the case involves more complicated issues that cannot be more fully
10 examined or investigated in the expedited proceeding under the Policy and the Rules,
11 the parties have all the freedom to resort to litigation, arbitration or any other dispute
12 resolution mechanism.” Indeed, the ICANN rules specifically state that the UDRP
13 proceeding would be superseded by a court proceeding and invalidated automatically if
14 filed within 10 days of any UDRP decision.
15 38. In connection with the UDRP case CN-1801135, Plaintiff incurred legal fees.
16 39. On March 13, 2018, the CN-1801135 decision denying Defendant Evergrande's UDRP
17 complaint was finalized and served on the registrar and the parties.
18 40. Thereafter, Plaintiff waited a reasonable amount of time, i.e., 6 months, for the
19 Defendant Evergrande to proceed to a court of competent jurisdiction before he
20 developed the website.
21 41. In October 2018, Plaintiff proceeded when it did not appear legal action was imminent
22 from Evergrande.
23 42. Therefore, Plaintiff logged into his account at Epik.com with the intention of changing
24 the name servers as to the website so that content could be placed and the parked page 1 removed.
2 43. Much to Plaintiff's surprise, there appeared to be a “registrar UDRP lock” on the
3 domain name.
4 44. Plaintiff retained an attorney to contact Epik.com to determine why it did not remove
5 the UDRP lock.
6 45. Epik.com advised Plaintiff's attorney that “[I]t seems another UDRP was filed against
7 this domain during October. Therefore Epik was required, based on ICANN guidelines,
8 to lock the domain.”
9 46. Plaintiff's attorney notified Epik that Plaintiff did not receive service of the complaint.
10 Epik.com advised Plaintiff's attorney that it also did not receive service of the
11 complaint.
12 47. Plaintiff's counsel attempted to locate the decision of the UDRP Panel and it
13 mysteriously was not published on the website of the ADNDRC. Instead, a completely
14 different case decision appeared with the same docket number.
15 48. Oddly, the ADNDRC Beijing did not publish the case decision online until after
16 Plaintiff's counsel complained.
17 49. Plaintiff's counsel, through a dialogue with Epik.com, learned that the ADNDRC's
18 Hong Kong office (administered by a completely different arbitration company than that
19 which operates ADNDRC Beijing) notified the registrar Epik that Defendant
20 Evergrande initiated a second proceeding against Plaintiff and CADA at HK-18010174
21 approximately on October 10, 2018.
22 50. The ADNDRC took no action to notify Plaintiff or CADA of the proceeding.
23 51. After repeated inquiries and complaints to the ADNDRC, on October 29, 2018,
24 Plaintiff's attorney received the following email: “Domain name case - Procedure Issue 1 Dear Sirs, Please note that ADNDRC Hong Kong office was first made aware of the
2 existence of an earlier proceeding at ADNDRC on 23 October 2018, by our
3 communication with Ms. Karla Corea, Counsel for the Respondent Central American
4 Domain Authority Ltd.. By allowing the proceedings to initiate,we understand that the
5 Respondent meant that the only step taken by ADNDRC Hong Kong office was to send
6 the Registrar the verification request in accordance with Rule 4 of Rules for Uniform
7 Domain Name Dispute Resolution Policy (the "Rules"), which allows the Registrar to
8 verify and confirm that a Lock of the domain name has been applied. Such step is
9 usually taken before any administrative compliance review is conducted, and far before
10 the Notice of Complaint is served on the Respondent. Now that we have been made
11 aware of the existence of an earlier decision rendered by an ADNDRC panelist, we
12 consider that we are in a position to discontinue the case. We ask the Complainant to
13 provide comment on or before 3 November 2018. If we do not hear from the
14 Complainant by then, we shall discontinue the administration of the case proceeding.
15 Best regards, ADNDRC (Hong Kong Office).”
16 52. Neither Plaintiff, CADA, nor their legal counsel received any further notice about the
17 case.
18 53. Based on information, Defendant Evergrande did not file a timely objection to the
19 decision to discontinue the case as duplicative.
20 54. Notwithstanding that Plaintiff's agreement with Epik.com and ICANN rules only
21 provide for a single binding proceeding, and despite the UDRP Panel making it clear
22 that the proper remedy would be a court proceeding, Defendant Evergrande filed yet a
23 third UDRP action before the ADNDRC's Hong Kong office on December 8, 2008,
24 resulting in the lock being retained on the domain name. 1 55. The ADNDRC's Hong Kong office notified Plaintiff of the Complaint on December 12,
2 2019, which was docketed at Case No. HK-18010195.
3 56. Plaintiff and CADA objected to ADNDRC's Hong Kong office that where multiple
4 cases are filed, under UDRP Policy 4(f), the cases should be consolidated and that the
5 decision as to whether to consolidate the cases must be decided by the original UDRP
6 panel. In accordance with UDRP Policy 4(f), Plaintiff also served the original UDRP
7 panel by providing copies of the objection and requests to consolidate to the Beijing
8 Office of the ADNDRC.
9 57. On February 12, 2019, ADNDRC's Hong Kong office made an unsigned decision
10 denying the request to consolidate. The unknown person at ADNDRC wrote, “Having
11 considered the circumstances of these matters, including the provisions of Uniform
12 Domain Name Dispute Resolution Policy (the “Policy”), we wish to inform the parties
13 that we are not in a position to accede to the Respondent’s the first request. The Case
14 Manager will shortly appoint a Panelist for the second matter and the third matter.
15 Should you have any questions, please contact us. Thank you for your attention. Yours
16 faithfully, ADNDRC (Hong Kong Office) .”
17 58. UDRP rules issued by ICANN, incorporated into the Epik.com contract, do not provide
18 for any jurisdictional decision to be made by anonymous case administrators. On the
19 contrary, UDRP Policy 4(f) specifically provides jurisdiction to the first UDRP Panel to
20 make the decision.
21 59. During the period when Plaintiff objected to the jurisdiction over the third UDRP action
22 against it, in contravention of the agreement with Epik.com that adopted ICANN
23 dispute rules providing for a binding “proceeding,” not multiple proceedings, Defendant
24 Evergrande stated that it filed the third action because it maintained new evidence. 1
2 60. Defendant Evergrande's new evidence was that the Plaintiff allegedly provided a false
3 address simply because a courier in China that contracted Federal Express could not
4 deliver a letter since it was a Post Office Box, not a physical address.
5 61. Defendant Evergrande's new evidence also consisted of the fact that Plaintiff registered
6 six other domain names-- even though Plaintiff advised the first UDRP panel that
7 several domain names were registered on the same day for similar purposes.
8 62. Defendant Evergrande admitted in the proceeding that Plaintiff registered the other
9 domain names on the same date he registered
10 that it did not “find them” at the time of the original complaint, “Although the
11 Respondent already registered these domains above at the time of the original case, the
12 Complainant did not find them until the final complaint.” Evergrande did not advise
13 what steps it took to find them before filing the original proceeding.
14 63. On March 19, 2019, a new UDRP panel took jurisdiction of the case and found that the
15 “new evidence” allowed reconsideration of the prior decision.
16 64. The UDRP panel then disregarded the findings of the prior UDRP panel.
17 65. The new UDRP panel found no issue with the forum shopping of Defendant Evergrande
18 first filing in Beijing then, after having a negative decision, filing in Hong Kong.
19 66. The new UDRP panel did not discuss the second UDRP action where Defendant
20 Evergrande maintained an opportunity to provide a reason why it was filing a second
21 action, but apparently failed to do so.
22 67. The new UDRP panel disregarded Paragraph 4(f) of the UDRP policy that clearly states,
23 “In the event of multiple disputes between [the respondent] and the a complainant,
24 either [the respondent] or the complainant may petition to consolidate the disputes 1 before a single Administrative Panel. This petition shall be made to the first
2 Administrative Panel appointed to hear a pending dispute between the parties....”
3 68. The new UDRP panel simply stated that since the original UDRP proceeding
4 terminated, the original Panelist became “functus officio” notwithstanding that the
5 UDRP rules do not provide any jurisdiction for a second proceeding at all.
6 69. The entire purpose of the policy is to avoid forum shopping and multiple, inconsistent
7 decisions. Therefore, if the single authorized proceeding terminated, and the panelist
8 became “functus officio,” preventing consolidation, then clearly the ADNDRC lacked
9 jurisdiction over the third UDRP proceeding.
10 70. Moreover, the UDRP policies, which are part of a contract between Epik.com and
11 Plaintiff, provide only for a “proceeding,” not “proceedings,” meaning that without
12 consolidation, there exists no jurisdiction to maintain a second case or transfer the
13 domain.
14 71. The new UDRP panel disregarded evidence about the letter sent by Defendant
15 Evergrande and found it not to be new evidence.
16 72. However, the new UDRP panel found that the other domains registered did constitute
17 new evidence because a privacy service was used to conceal ownership.
18 73. This “privacy service” theory was not raised by Defendant Evergrande, but sua sponte
19 by the panelist.
20 74. The reason Defendant Evergrande did not raise this contention was because the Plaintiff
21 never used a privacy service to register any domains and the information was publicly
22 available at the time of the original proceeding.
23 75. The Plaintiff used the same exact registration data as in the registration of
24
2 first case concluded.
3 76. Moreover, Plaintiff himself advised the first panel of the registration of other domains
4 and the opinion and decision of the first UDRP panel specifically chose to disregard the
5 evidence and focus solely on
6 77. Indeed, Plaintiff originally wanted the panel to look at his other domain names and
7 websites because they included the type of “gripe site” protected, fair use, public
8 interest content.
9 78. The new UDRP panel found that the fact that Plaintiff did not put material onto the
10 website constituted evidence of bad faith intent notwithstanding that the domain has
11 been under constant litigation since January 2018.
12 79. The new UDRP panel then concluded that the registration of
13 was in bad faith because Plaintiff also registered five (5) other domain names.
14 80. The new UDRP panel held that the statement on the website that it was not for sale “is a
15 mere 'cloak' to conceal the Respondent's cybersquatting activities” because content was
16 not placed on the other unrelated registered websites. But see First UDRP decision
17 refusing to look at the Plaintiff's content on developed sites.
18 81. In the first UDRP proceeding, the UDRP Panel held that Defendant Evergrande's
19 evidence would be struck from the record because it was not translated into Chinese.
20 82. However, the new UDRP panel dove into a discriminatory basis for finding bad faith
21 registration-- suggesting that only Chinese people, who understand the Chinese
22 language, have a right to create a discussion site about Chinese companies. The new
23 UDRP panel wrote, “By the Respondent's own admission, the Respondent does not
24 possess any Chinese language capability where the targets for generating public interest 1 discussions are companies in China. With such a language handicap, how could it be a
2 possibility for the Respondent to engage in public interest advocacy work in China?
3 The Respondent's assertion that by registering the Disputed Domain Name was used for
4 non-commercial public interest advocacy purpose only is nothing but a joke.”
5 83. Finally, despite the first UDRP panel refusing to look at the content and purpose of the
6 other domain names registered by Plaintiff, the new UDRP panel faulted Plaintiff for
7 not explaining why he did not take any action on the domains. Regardless, the stare
8 decisis of the issue from the first UDRP panel was that the evidence of the Plaintiff's
9 publishing on the other websites was not relevant to
10 84. Based on this third UDRP action, the panelist directed the transfer of the domain name
11
12 85. Without filing this action ten (10) business days from the proceeding, the Plaintiff
13 would lose the domain name he registered in good faith to place non-commercial
14 content on.
15 COUNT I – Reverse Domain Hijacking Under 15 USC 1114(2)(D)(iv)-(v)
16 86. Paragraphs 1 through 85 are hereby incorporated by reference as if fully set forth again.
17 87. Almost immediately upon registering the domain name
18 Defendant Evergrande attempted to trick Plaintiff into offering the domain name as
19 being for sale in an effort to dupe it into appearing to be a cybersquatter.
20 88. Plaintiff's domain name has been locked beyond Plaintiff's full enjoyment of the
21 benefits of registration thereof in consequence of the false statements made by
22 Defendant Evergrande under a dispute policy followed by domain registrar Epik.com
23 and the filing on multiple, seriatim proceedings not authorized by the UDRP or the
24 contract between Plaintiff and Epik.com. 1 89. Plaintiff has provided Defendant Evergrande with notice of this action.
2 90. Plaintiff has incurred costs, including, without limitation, attorneys fees in the three
3 seriatim proceedings, in seeking to transfer the domain name.
4 91. The domain name has been ordered transferred, and would be transferred to Defendant
5 Evergrande but for this action.
6 92. All the while, Defendant Evergrande allows similar domain names such as
7
8 93. Defendant Evergrande's actions – especially the second and third action – against
9 Plaintiff have been in bad faith as it knew that the Plaintiff's sole intent is to discuss the
10 activities of Defendant Evergrande in a public forum.
11 COUNT II – Declaratory Relief 28 USC 2201, Non-Violation of Lanham Act and ACPA
12 94. Paragraphs 1 through 93 are hereby incorporated by reference as if fully set forth again.
13 95. Plaintiff has not sought to profit in any way from registration and use of the domain
14 name
15 trade or service mark.
16 96. Plaintiff specifically did not respond to Defendant Evergrande's attempts to trick it into
17 offering the domain for sale.
18 97. Based on information, Defendant Evergrande does not engage in interstate commerce in
19 the United States of America, where Plaintiff registered his domain name, in connection
20 with any goods or services using “Evergrande” as a trademark.
21 98. Indeed, it appears that a company Evergrande Group Co. Ltd. of China specifically and
22 voluntarily abandoned its trademark registration for “Evergrande Group” and “D
23 Evergrande Group,” retaining only “Evergrande Springs” as a trademark in the United
24 States. 1 99. Defendant Evergrande does not employ “Evergrande” as a trade or service mark under
2 the Lanham Act.
3 100. Defendant Evergrande does not own a registration of “Evergrande” as a trade or
4 service mark under the Lanham Act.
5 101. Defendant Evergrande's claimed marks are not famous in the United States
6 under the Federal Antidilution Act, 15 USC 1125.
7 102. Plaintiff has conducted no activities outside of the United States concerning the
8 domain name. Rather, Plaintiff only placed an English language notice that the domain
9 is not for sale and that public interest information would be forthcoming.
10 103. Plaintiff's purchase in registering the domain name related solely to create an
11 English language discussion site about international manipulation by Evergrande Real
12 Estate Group.
13 104. Plaintiff's planned use of the domain name constitutes fair use.
14 105. Plaintiff's planned use of the domain name within the United States is protected
15 by the First Amendment to the United States Constitution.
16 106. Plaintiff reasonably believes that his registration and use of the domain name
17
18 under the Lanham Act and the Anticybersquatting Consumer Protection Act.
19 107. There is an actual controversy with respect to whether Defendant Evergrande is
20 entitled to transfer of the Domain Name based on any rights under the ACPA or Lanham
21 Act.
22 108. In the absence of a declaration from this Court, Epik.com Inc. will transfer the
23 domain name to the control of Defendant Evergrande and Plaintiff will suffer
24 immediate and irreparable harm. 1 109. Plaintiff's registration and use of the domain name does not, and is not likely to
2 cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
3 association of Plaintiff with Defendant Evergrande, or as to the origin, sponsorship, or
4 approval of Plaintiff's goods, services, or commercial activities by Defendant
5 Evergrande because the only content that will be placed on the website will be public
6 interest commentary, investigations, and information that will be clearly marked as not
7 originating from Defendant Evergrande.
8 110. Plaintiff's registration and use of the domain name do not misrepresent the
9 nature, characteristics, qualities, or geographic origin of Defendant Evergrande's goods,
10 services, or commercial activities. Rather, the website will merely discuss the activities
11 of Defendant Evergrande and alleged wrongdoing.
12 COUNT III – Tortious Interference
13 111. Plaintiff incorporates and realleges paragraphs 1 through 110 as if fully set forth
14 again.
15 112. When registering the domain name
16 was forced to agree to a provision to allow third parties to file a single UDRP complaint
17 proceeding.
18 113. Nowhere in the contract with Epik, or the agreement to participate in the UDRP
19 proceeding, did Plaintiff agree to participate or defend in a second or third UDRP case.
20 114. In December 2017, Defendant Evergrande attempted to dupe Plaintiff into
21 offering the domain name
22 domain name
23 115. In early 2018, Defendant Evergrande initiated proceedings under the UDRP and
24 provided false information about Plaintiff stating that he provided a false telephone 1 number in an effort to seize the domain name
2 material, including the present time, the same telephone number works and is available
3 for use.
4 116. In the proceeding, Evergrande accused Plaintiff of registering the domain in bad
5 faith.
6 117. The proceedings terminated in Plaintiff's favor.
7 118. Three months later, Defendant Evergrande decided to set up Plaintiff by sending
8 a letter to its published post office box using a courier that subcontracts to Federal
9 Express. Federal Express cannot deliver to post office boxes in Costa Rica just as they
10 do not deliver express letters to post office boxes in the United States or Canada.
11 119. In October 2018, Defendant Evergrande initiated a second UDRP proceeding
12 against the Plaintiff.
13 120. Neither Plaintiff's agreement with Epik.com nor the ICANN UDRP rules
14 provide that a second proceeding, appeal, petition for reconsideration, etc. may be filed.
15 121. The filing of the second unauthorized UDRP action caused the domain name to
16 be locked a second time without notice to Plaintiff.
17 122. Plaintiff incurred more legal fees hiring an attorney to investigate the reasons the
18 domain was locked.
19 123. After Plaintiff's attorney objected, Defendant Evergrande was given an
20 opportunity to respond to the fact that it filed a second, unauthorized by contract
21 proceeding against Plaintiff.
22 124. Based on information, Defendant Evergrande did not respond to the forum's
23 notice to it and abandoned the second action leaving Plaintiff stuck with a legal bill and
24 a locked domain. 1 125. In December 2018, Defendant Evergrande filed a third UDRP case
2 notwithstanding that Plaintiff's contract with Epik and incorporation of ICANN rules
3 only providing for a single UDRP proceeding.
4 126. Defendant Evergrande provided false information to the UDRP panel that it did
5 not know that Plaintiff maintained other domain names (but see First Panel decision
6 discussing additional domain names).
7 127. Defendant Evergrande provided misleading information that Plaintiff provided a
8 false address in contravention of its agreement with Epik even though Plaintiff
9 maintained a valid post office box, but it simply does not accept deliveries from
10 couriers such as Federal Express.
11 128. Defendant Evergrande's misrepresentations and seriatim filings were made for
12 the purpose of inducing a misapplication of the dispute policy of Plaintiff and Epik's
13 domain registration contract, to cause breach thereof in that the UDRP was, after two
14 unsuccessful proceedings, misinterpreted and misapplied in the course of the UDRP
15 Proceeding thereby causing a breach of Plaintiff's domain registration contract.
16 129. Moreover, Defendant Evergrande's actions caused Epik to erroneously believe
17 that, even after Plaintiff prevailed on the only authorized UDRP proceeding, it needed
18 to lock the Plaintiff's registration of the domain and, absent the filing of this action,
19 transfer the domain name to Defendant Evergrande.
20 130. When registering the domain name, Plaintiff was forced to agree to a specific
21 registration agreement that incorporated by reference the UDRP as written.
22 131. Had Plaintiff sought the registration services of any other registrar, the
23 registration agreement may different but the UDRP would still be incorporated within
24 the registration agreement forming a part of the contract. 1 132. The registration agreement, at least to the extent it incorporated by reference the
2 UDRP is a contract of adhesion.
3 133. The UDRP was created and written in 1999. The language of the UDRP has not
4 been modified materially.
5 134. The declared intention of the UDRP was to address those disputes involving a
6 narrow class of cases in which the domain registration clearly constituted
7 cybersquatting.
8 135. The UDRP was created according to the guidelines of the “THE
9 MANAGEMENT OF INTERNET NAMES AND ADDRESSES: INTELLECTUAL
10 PROPERTY ISSUES,” Final Report of the WIPO Internet Domain Name Process April
11 30, 1999, issued by the World Intellectual Property Organization (“WIPO Final
12 Report”).
13 136. The WIPO Final Report included the following caveat regarding the intent and
14 operation of the UDRP: (34). It is further recognized that the goal of this WIPO
15 Process is not to create new rights of intellectual property, nor to accord greater
16 protection to intellectual property in cyberspace than that which exists elsewhere.
17 Rather, the goal is to give proper and adequate expression to the existing, multilaterally
18 agreed standards of intellectual property protection in the context of the new,
19 multijurisdictional and vitally important medium of the Internet and the DNS that is
20 responsible for directing traffic on the Internet. The WIPO Process seeks to find
21 procedures that will avoid the unwitting diminution or frustration of agreed policies and
22 rules for intellectual property protection. (35). Conversely, it is not intended that the
23 means of according proper and adequate protection to agreed standards of intellectual 1 property should result in a diminution in, or otherwise adversely affect, the enjoyment
2 of other agreed rights, such as the rights guaranteed in the Universal Declaration of
3 Human Rights.
4 137. Notwithstanding the original narrow intent of the UDRP, it has been the subject
5 of expansion undertaken as a result of continued panel decisions in which panelists
6 impose conflicting personal views of the UDRP.
7 138. To prevail in a UDRP involving a .com domain name, the complainant must
8 allege and provide that the “the domain name has been registered and is being used in
9 bad faith.”
10 139. UDRP Policy 4(c) provides that a UDRP will be overcome “if you are making a
11 legitimate non-commercial or fair use of the domain name, without intent for
12 commercial gain to misleadingly divert consumers or to tarnish the trademark or service
13 mark at issue.”
14 140. Improper application of the UDRP, and allowing complainants to file seriatim
15 proceedings not anticipated or expressly authorized by the domain registration
16 agreement or ICANN's UDRP provisions creates a continuing uncertainty as to
17 Plaintiff's contractual rights and obligations under the relevant registration agreement.
18 141. Allowing complainants to file proceedings every time they locate new evidence,
19 even evidence that is self-created or that was in existence at the time, when such
20 seriatim proceedings are not authorized by the UDRP, are not agreed upon in the
21 registration contract, all while disallowing a respondent from having any ability to
22 reopen a proceeding for new evidence, creates a situation where a domain registrant can
23 never count on having a final decision made in his favor.
24 142. Allowing complainants, but not respondents, to forum shop by using different 1 offices, and thus different panelists, when filing second and third UDRP proceedings-- a
2 procedure not authorized by the registration contract, creates an uncertainty for domain
3 registrants.
4 143. Filing second and third complaints using different offices, as Defendant
5 Evergrande did, and thus guaranteeing a different panelist, creates an uncertainty to
6 domain registrants.
7 144. Improper use of and application of the UDRP to provide for remedies in factual
8 situations not provided for in the UDRP subjects Plaintiff, and indeed any domain name
9 registration, to a continual unilateral amendment to the provisions of the relevant
10 registration agreement by a party that is not a party to the registration agreement.
11 145. Contracts are to be interpreted according to the plain meaning of the terms
12 thereof. Absent legally recognized exceptions, contracts are to be interpreted using the
13 language contained therein.
14 146. Defendant Evergrande's representations, and filing seriatim complaints not
15 authorized by the contract with Epik, were done for the purpose of inducing a
16 misapplication of the terms of Plaintiff's registration contract, resulting in the breach of
17 the contract.
18 147. That is, despite Plaintiff never agreeing to be subject to seriatim complaints
19 under the UDRP, but only agreeing to be bound by a single proceeding, Epik stands
20 ready to transfer the domain name to Defendant Evergrande.
21 148. Defendant Evergrande knew the terms of the contract between Epik and Plaintiff
22 and knew the UDRP provided for only a proceeding.
23 149. Defendant Evergrande's actions intentionally induced Epik to repeatedly lock the
24 domain name in breach of the contract by filing seriatim proceedings not authorized 1 under the UDRP.
2 150. Defendant Evergrande's actions intentionally induced Epik to agree to transfer
3 the domain name to Plaintiff based on the third, unauthorized by contract, UDRP
4 proceeding and decision.
5 151. Defendant Evergrande's purpose was improper and done through improper
6 means.
7 152. The breach of contract by Epik caused damages to the Plaintiff including having
8 to pay money to retain legal counsel to investigate why the domain name was locked a
9 second time and to defend against the improperly filed second and third proceedings,
10 and having its domain name locked for a prolonged period of time, including the
11 present time.
12 153. The proximate cause of the damages to Plaintiff were from Defendant
13 Evergrande's tortious interference with contractual relations.
14 COUNT IV – Conversion
15 154. Paragraphs 1 through 153 are hereby incorporated by reference as if fully set
16 forth again.
17 155. Plaintiff, by registering the domain name
18 purpose of creating a discussion board about Defendant Evergrande's activities,
19 received a property right in the name.
20 156. By filing seriatim UDRP cases until it found a panelist that agreed with it,
21 Defendant Evergrande has impaired Plaintiff's possession and control of the domain
22 name.
23 157. Defendant Evergrande continues to willfully exert dominion over the domain
24 name. 1 158. Absent a declaration from this Court, Defendant Evergrande will continue to
2 dominion over the domain name and wrest all rights in the domain name from Plaintiff
3 for Defendant Evergrande's use thereof.
4 WHEREFORE, Plaintiff Sergio Sanchez respectfully demands that this Court: (1) Declare that
5 Defendant Evergrande has no trademark rights that are subject to protection in the United States as to
6
7 entitled to registration, ownership, and use of the domain name
8 declare that Plaintiff's registration and intended use of the domain name to create a discussion site is
9 lawful, fair use, and protected by the First Amendment to the United States Constitution and does not
10 infringe on any trade or servicemark right Defendant Evergrande may claim in the United States; (4)
11 Declare that Defendant Evergrande attempted to unlawfully interfere with Plaintiff's rights and
12 expectations under the domain registration agreement with Epik and has induced a breach thereof
13 through the misapplication of the dispute resolution policy; (5) Declare that the domain name
14 registration agreement and the policies of the UDRP do not provide for an authorized contractual
15 remedy allowing a second or third proceeding after a complainant's first action is denied; (6) Declare
16 that the decision in the third UDRP action by Defendant Evergrande and against Plaintiff was made
17 without contractual authority or jurisdiction under the UDRP as there is no provision for re-filed
18 actions in the UDRP; (7) Declare that the decision in the third UDRP action by Defendant Evergrande
19 was made without contractual authority or jurisdiction under the UDRP where a petition was made to
20 the original panel to consolidate the cases and for the case to be placed before the original panel, but
21 the original panel was not provided with an opportunity to make the decision to consolidate under the
22 UDRP terms; (8) Declare that the use of the UDRP and the third UDRP decision was an improper
23 interpretation of the contractual rights of the Plaintiff under its registration agreement; (9) Declare that,
24 as a matter of contract, only a single UDRP proceeding may be filed against a domain holder; (10) 1 Declare that the UDRP, incorporated into the contract, does not provide a procedure for either party to
2 seek reconsideration of a decision by filing a second or third proceeding, but that the sole remedy after
3 losing the initial UDRP case is to proceed to Court or another form of litigation; (11) Enjoin Defendant
4 Evergrande from taking further actions as to the domain name without leave of this Court; (12) Grant
5 judgment for damages as a proximate result of the actions of Defendant Evergrande; and (13) Award
6 costs, fees, interest, and any other relief that may be granted.
7 Respectfully submitted, 8 9 10 ______11 Sergio Sanchez 12 c/o ABC Agents 13 PO Box 37635 Unit 10287 14 Philadelphia, PA 19101 15 [email protected] 16 17 PLAINTIFF 18 19 20 21 VERIFICATION 22 23 Plaintiff declares that the above is true and correct to the best of his knowledge and that the
24 averments are made under the penalty for perjury (28 USC 1746).
25 26 27 ______28 Sergio Sanchez 29 30 31
32 33 34 35 1 EXHIBIT A
2 Epik.com Universal Terms of Service 3 Domain Name Registration Agreement 4 This Agreement (Agreement) is by and between Epik, Inc., (Epik.com, Epik, We or Us), a Seattle, WA limited 5 liability company and You, Your heirs, agents, successors and assigns (You or User) and is effective upon the 6 earlier of: (i) Your first use of the Site for any reason; (ii) acceptance of this Agreement by new registering users; or 7 (iii) the Effective Date noted on the posted version of the Agreement.
8 The following sets forth the terms and conditions of Your use of Epik`s domain name related ("Services") and 9 explains Epik`s obligations to You and Your obligations to Epik in relation to the Services You utilize and also the 10 domain name registered with Epik (the “Site”). You must read, agree with and accept all of the terms and 11 conditions contained in this User Agreement and the Privacy Policy, which include those terms and conditions 12 expressly set out below and those incorporated by reference, before You may use the Site or the Services and 13 become a registered user of the Services.
14 1. Modification of This Agreement 15 We may amend this Agreement at any time by emailing you directly or by posting the amended terms on the Site. 16 Except as stated below, all amended terms shall automatically be effective at 12:01 am on the Effective Date, 17 which in most cases will be no less than 30 days after the amended terms are initially posted on the Site or 18 emailed to you. The posting date and effective date for this Agreement are noted at the bottom of this document.
19 2. Eligible Users 20 Use of the Site and Services is restricted to persons: at least 18 years old or a legitimate business entity officially 21 registered in your respective region. If You are registering as a business entity, You represent that You have the 22 authority to bind the entity to this Agreement. If You are not yet 18, do not have the capacity to enter into contracts, 23 if You are easily offended, or are accessing this Site from any country where material on this Site is prohibited or 24 illegal, You do not have permission to access the Site or the Services. If a parent or guardian wishes to permit a 25 person under 18, and under his or her supervision, to use this Site, the parent or guardian should email Epik at 26 [email protected] to make arrangements, although no such access can be guaranteed.
27 Accessing Epik`s Services, except as expressly allowed through instructions and truthful statements by the You in 28 regard to use of this Site or the Services, from places where their contents are illegal, is prohibited. Those who 29 choose to access our Services and the Site from other locations do so knowingly on their own initiative and 30 voluntarily at their own risk and are responsible for compliance with local laws. 31 YOU AGREE TO
32 If you are registering a domain name in the following registries: .BZ, .CA, .CC, .CM, .CN, .CO, .DE, .EU, .IN, 33 .ME, .NU, .TV, .UK, .US, .WS, you are also agreeing to the additional terms and requirements promulgated by and 34 pertaining to each such registry, all laws and governmental rules and restrictions relevant to those jurisdictions, and 35 the specific agreements and/or covenants referenced therein and incorporated into this Agreement.
36 3. Acceptable Use 37 3.1. User Accounts and Domain Name WHOIS Information 38 If You violate the Acceptable Use terms described herein, Epik may, in its sole discretion, with or without notice, 39 terminate Your access to the Site and Services. You are allowed to create one (1) user account with Epik. Post 40 office boxes or addresses of office service providers may not be used as an address for a User account. It is 41 likewise not permitted to provide value-added service numbers as telephone numbers for a Customer Account. 42 Furthermore, Epik reserves the right to forbid the use of freely available email addresses as the email address for a 43 user account. 44 In addition, You hereby represent and warrant that: \(a\) You are an eligible user; (b) You have provided accurate 45 and complete information in connection with Your registration and use of the Site (all such information collectively 1 referred to as "Your Information"), and (c) You will update Epik to ensure that Your Information remains accurate 2 and complete.
3 As further consideration for the Service(s), you agree to provide certain current, complete and accurate information 4 about you, both with respect to your account information and with respect to the WHOIS information for your 5 domain name(s). You agree to maintain and update this information as needed to keep it current, complete and 6 accurate. With respect to you, the administrative, technical, and billing contacts for your domain name 7 registration(s) and other Service(s), you must submit the following: name, postal address, e-mail address, voice 8 telephone number, and, if available, fax number. You agree that the type of information you are required to provide 9 may change and you understand that, if you do not provide the newly required information, your registration or 10 and/or other Service(s) may be suspended or terminated or may not be renewed. In the event the lack of 11 accurate/current contact information results in the loss, cancellation or transfer of the domain name(s) associated 12 with your account, you agree that you shall not hold Epik liable for any such loss or any damages associated with 13 the loss. Not providing requested information may prevent you from obtaining all Service(s). You may provide 14 information regarding the name-servers assigned to your domain name(s) and, if we are providing name-server 15 services to you, the DNS settings for the domain name.
16 You agree to notify Epik within five (5) business days when any of the information you provided as part of the 17 application and/or registration process changes. It is your responsibility to keep this information in a current and 18 accurate status. Failure by you, for whatever reason, to provide Epik with accurate and reliable information on an 19 initial and continual basis, shall be considered to be a material breach of this Agreement. Failure by you, for 20 whatever reason, to respond within five (5) business days to any inquiries made by Epik to determine the validity of 21 information provided by you, shall also be considered to be a material breach of this agreement. You agree to 22 retain a copy for your record of the receipt for purchase of your domain name or Services.
23 You acknowledge and agree that domain name registration requires that this contact information, in whole or in 24 part, be shared with the registry operator. As required by ICANN, this information must also be made publicly 25 available by means of Whois, and that the registry operator may also be required to make this information publicly 26 available by Whois. Both Epik and the registry operator may be required to archive this information with a third 27 party escrow service. You hereby consent and give permission for all such requirements and disclosures. Further, 28 you represent and warrant that, if you are providing information about a third party, you have notified the third party 29 of the disclosure and the purpose for the disclosure and you have obtained the third party`s consent to such 30 disclosure.
31 32 3.2. Use of the Services and the Site 33 You agree not to use the Services provided by Epik, or to allow or enable others, to use the services provided by 34 Epik for the purposes of: 1) the transmission of unsolicited email (Spam); or 2) repetitive, high volume inquires into 35 any of the services provided by Epik (i.e. domain name availability, etc.). Further, if you are hosting your domain`s 36 domain name servers ("DNS") on Epik’s servers, or are using our systems to forward a domain, URL, or otherwise 37 to a system or site hosted elsewhere, or if you have your domain name registered with Epik, you are responsible 38 for ensuring that there is no excessive overloading of Epik’s DNS systems. You may not use Epik’s servers and 39 your domain as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet 40 flooding, packet corruption, or other abusive attack. Server hacking or other perpetration of security breaches is 41 prohibited. You agree that Epik reserves the right to deactivate your domain name from its DNS system if Epik 42 deems it is the recipient of activities caused by your site that threaten the stability of its network. You agree that 43 Epik, in its sole discretion and without liability to you, may refuse to accept the registration of any domain name. 44 Epik also may in its sole discretion and without liability to you delete the registration of any domain name during the 45 first thirty (30) days after registration has taken place. 46 Further, You may not use the Site or the Services provided through or in connection with the Site to: (a) defame, 47 abuse, harass, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; (b) 48 conduct or forward illegal contests, pyramid schemes, or chain letters; (c) publish, post, distribute, disseminate or 49 link to any: (i) unlawful content, topic, material, or information, any of which are of an obscene, adult, nude, 50 prurient, or indecent nature; (ii) software or other material protected by intellectual property laws, copyright 51 licenses, rights of privacy or publicity, or other proprietary rights, unless You own, control such rights or have 52 received all necessary consents for Your use of such software and other materials; (iii) software or other material 1 that contains viruses, corrupted files, or that may or are intended to damage the operation of another`s computer 2 (e.g., "cracks," "hacks," or other programs written to defeat the security measures of any computer, system or 3 programs); (d) sell, distribute, disseminate or link to any sites for marketing, sales or distribution of: firearms, 4 explosives, ammunition, liquor, tobacco products, food that is not packaged or does not comply with all applicable 5 laws for sale to consumers by commercial merchants, pharmaceuticals and controlled substances, counterfeit, 6 pirated or stolen goods, fraudulent goods, any goods or services that infringe or otherwise violate a third party`s 7 rights, registered or unregistered securities, goods or services that: (i) You cannot legally sell, (ii) are 8 misrepresented, and/or (iii) if sold, would cause Epik to violate any law, statute or regulation; (e)harvest or 9 otherwise collect information about third parties, including email addresses, without the express consent of such 10 third parties; (f) restrict or inhibit any other user from using and enjoying its rights in the Services or the Site, 11 interfering with or disrupting the Services or the Site service or servers or network connected to the Site; (g) use a 12 Domain in connection with Your use of the Site that is confusing or misleading to other Users or to the public; (h) 13 email or otherwise transmit, distribute, publish or disseminate any "junk email," "Spam," "chain letters," "pyramid 14 schemes," or any other form of duplicative or inappropriate solicitations or messages (commercial or otherwise); (i) 15 violate the rights of any third parties, including, but not limited to, trademark, naming or publicity rights, or (j) violate 16 any applicable government laws or regulations. Epik does not condone or allow Spam. Epik will cooperate with 17 legal authorities and Internet service providers in releasing information about users who violate this Acceptable 18 Use Policy.
19 You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works 20 from, transfer, or sell any information, software, products, services or benefits obtained from the Site, except as 21 expressly provided herein. At all times, You remain solely responsible for Your Information.
22 3.3. Privacy Policy 23 You agree and consent that we will make available the domain name registration information you provide or that 24 we otherwise maintain to the following parties: ICANN, the registry administrator(s), and to other third parties as 25 ICANN and applicable laws may require or permit (including through web-based and other on-line WHOIS lookup 26 systems), whether during or after the term of your domain name registration services of the domain name. You 27 hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or 28 use of such information. Additionally, you acknowledge that ICANN may establish or modify the guidelines, limits 29 and/or requirements that relate to the amount and type of information that we may or must make available to the 30 public or to private entities, and the manner in which such information is made available. Information regarding 31 ICANN`s guidelines and requirements regarding WHOIS can be found 32 at http://www.icann.org/registrars/wmrp.htm, http://www.icann.org/registrars/wdrp.htm, and elsewhere on the 33 ICANN website at http://www.icann.org/index.html. You agree that we may make publicly available, or directly 34 available to third parties, some, or all, of the information you provide, for purposes of inspection (such as through 35 our WHOIS service) or for targeted marketing and other purposes as required or permitted by applicable laws. One 36 of the ways that we may make some or all of the information you provide available to the public or third parties is 37 by way of bulk WHOIS data access provided to third parties who enter into a bulk WHOIS data access agreement 38 with us. We reserve the right to discontinue providing bulk WHOIS data access to third parties. You agree that, to 39 the extent permitted by ICANN policies and regulations, Epik may make use of the publicly available information 40 you provided during the registration process. If you engage in the reselling of domain names you agree to provide 41 any individuals whose personal information you`ve obtained, information about the possible uses of their personal 42 information pursuant to ICANN policy. You also agree to obtain consent, and evidence of consent, from those 43 individuals for such use of the personal information they provide.. 44 Epik is not obligated to monitor the content on the Site. However, with respect to the use of the Services or the 45 Site, Epik reserves the right to disclose any information, communication, or materials as necessary to satisfy any 46 applicable law, regulation, legal process or government request, or to edit, refuse to post or to remove any 47 information or materials, in whole or in part, from the Site, in Epik`s sole discretion, without notice at any time.
48 3.4. Violations of Acceptable Use 49 Epik may elect to discontinue offering the Services, or any portion thereof, at any time for any reason, with or 50 without advance notice. 51 You are responsible for safeguarding the confidentiality of Your password(s) and login name(s) issued to You by 52 Epik, and for any use or misuse of Your account or the Services or the Site resulting from any third party using a 53 password or login name issued to You. 54 You agree that You will 1 3.5. Reserved 2 3.6. Reserved 3 3.7. Business Dealings, Including with Registered Name Holders 4 3.7.1 In the event ICANN
5 3.7.2 Epik shall abide by applicable laws and governmental regulations.
6 3.7.3 Epik shall not represent to any actual or potential Registered Name Holder that Epik enjoys access to a 7 registry for which Epik is Accredited that is superior to that of any other registrar Accredited for that registry.
8 3.7.4 Epik shall not activate any Registered Name unless and until it is satisfied that it has received a reasonable 9 assurance of payment of its registration fee. For this purpose, a charge to a credit card, general commercial terms 10 extended to creditworthy customers, or other mechanism providing a similar level of assurance of payment shall be 11 sufficient, provided that the obligation to pay becomes final and non-revocable by the Registered Name Holder 12 upon activation of the registration.
13 3.7.5 At the conclusion of the registration period, failure by or on behalf of the Registered Name Holder to consent 14 that the registration be renewed within the time specified in a second notice or reminder shall, in the absence of 15 extenuating circumstances, result in cancellation of the registration by the end of the auto-renew grace period 16 although Epik may choose to cancel the name earlier.
17 3.7.5.1 Extenuating circumstances
18 3.7.5.2 Where Epik chooses, under extenuating circumstances, to renew a domain name without the explicit 19 consent of the registrant, Epik will maintain a record of the extenuating circumstances associated with renewing 20 that specific domain name for inspection by ICANN consistent with clauses 3.4.2 and 3.4.3 of this Epik 21 accreditation agreement.
22 3.7.5.3 In the absence of extenuating circumstances as defined in Section 3.7.5.1 above, a domain name must be 23 deleted within 45 days of either Epik or the registrant terminating a registration agreement.
24 3.7.5.4 Epik shall provide notice to each new registrant describing the details of their deletion and auto-renewal 25 policy including the expected time at which a non-renewed domain name would be deleted relative to the domain`s 26 expiration date, or a date range not to exceed ten 10 days in length. If a Epik makes any material changes to its 27 deletion policy during the period of the registration agreement, it must make at least the same effort to inform the 28 registrant of the changes as it would to inform the registrant of other material changes to the registration 29 agreement
30 3.7.5.5 Reserved
31 3.7.5.6 Reserved
32 3.7.5.7 In the event that a domain which is the subject of a UDRP dispute is deleted or expires during the course of 33 the dispute, the complainant in the UDRP dispute will have the option to renew or restore the name under the 34 same commercial terms as the registrant. If the complainant renews or restores the name, the name will be placed 35 in Epik HOLD and Epik LOCK status, the WHOIS contact information for the registrant will be removed, and the 36 WHOIS entry will indicate that the name is subject to dispute. If the complaint is terminated, or the UDRP dispute 37 finds against the complainant, the name will be deleted within 45 days. The registrant retains the right under the 38 existing redemption grace period provisions to recover the name at any time during the Redemption Grace Period, 39 and retains the right to renew the name before it is deleted.
40 3.7.6 Epik shall not insert or renew any Registered Name in any registry for which Epik is accredited by ICANN in a 41 manner contrary to an ICANN policy stating a list or specification of excluded Registered Names that is in effect at 42 the time of insertion or renewal. 1 3.7.7 Epik shall require all Registered Name Holders to enter into an electronic or paper registration agreement 2 with Epik including at least the following provisions (except for domains registered by the Epik for the purpose of 3 conducting its Epik Services where the Epik is also the Registered Name Holder, in which case the Epik shall 4 submit to the following provisions and shall be responsible to ICANN for compliance with all obligations of the 5 Registered Name Holder as set forth in this Agreement and ICANN policies established according to this 6 Agreement
7 3.7.7.1 The Registered Name Holder shall provide to Epik accurate and reliable contact details and promptly 8 correct and update them during the term of the Registered Name registration, including: the full name, postal 9 address, e-mail address, voice telephone number, and fax number if available of the Registered Name Holder; 10 name of authorized person for contact purposes in the case of an Registered Name Holder that is an organization, 11 association, or corporation.
12 3.7.7.2 A Registered Name Holder`s willful provision of inaccurate or unreliable information, its willful failure 13 promptly to update information provided to Epik, or its failure to respond for over fifteen (15) calendar days to 14 inquiries by Epik concerning the accuracy of contact details associated with the Registered Name Holder`s 15 registration shall constitute a material breach of the Registered Name Holder contract with Epik and be a basis for 16 cancellation of the Registered Name registration.
17 3.7.7.3 Any Registered Name Holder that intends to license use of a domain name to a third party is nonetheless 18 the Registered Name Holder of record and is responsible for providing its own full contact information and for 19 providing and updating accurate technical and administrative contact information adequate to facilitate timely 20 resolution of any problems that arise in connection with the Registered Name. A Registered Name Holder licensing 21 use of a Registered Name according to this provision shall accept liability for harm caused by wrongful use of the 22 Registered Name, unless it promptly discloses the current contact information provided by the licensee and the 23 identity of the licensee to a party providing the Registered Name Holder reasonable evidence of actionable harm.
24 3.7.7.4 Epik shall provide notice to each new or renewed Registered Name Holder stating:
25 3.7.7.4.1 The purposes for which any Personal Data collected from the applicant are intended;
26 3.7.7.4.2 The intended recipients or categories of recipients of the data (including the Registry Operator and others 27 who will receive the data from Registry Operator);
28 3.7.7.4.3 Which data are obligatory and which data, if any, are voluntary; and
29 3.7.7.4.4 How the Registered Name Holder or data subject can access and, if necessary, rectify the data held 30 about them.
31 3.7.7.5 The Registered Name Holder shall consent to the data processing referred to in Subsection 3.7.7.4.
32 3.7.7.6 The Registered Name Holder shall represent that notice has been provided equivalent to that described in 33 Subsection 3.7.7.4 to any third-party individuals whose Personal Data are supplied to Epik by the Registered 34 Name Holder, and that the Registered Name Holder has obtained consent equivalent to that referred to in 35 Subsection 3.7.7.5 of any such third-party individuals.
36 3.7.7.7 Epik agrees that it will not process the Personal Data collected from the Registered Name Holder in a way 37 incompatible with the purposes and other limitations about which it has provided notice to the Registered Name 38 Holder in accordance with Subsection 3.7.7.4 above.
39 3.7.7.8 Epik agrees that it will take reasonable precautions to protect personal data from loss, misuse, 40 unauthorized access or disclosure, alteration, or destruction. 1 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder`s knowledge 2 and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used 3 infringes the legal rights of any third party.
4 3.7.7.10 For the adjudication of disputes concerning or arising from use of the Registered Name, the Registered 5 Name Holder shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the 6 courts (1) of the Registered Name Holder`s domicile and (2) where Epik is located or as may be otherwise set forth 7 agreed between Epik and the Registered Name Holder.
8 3.7.7.11 The Registered Name Holder shall agree that its registration of the Registered Name shall be subject to 9 suspension, cancellation, or transfer pursuant to any ICANN adopted specification or policy, or pursuant to any 10 Epik or registry procedure not inconsistent with an ICANN adopted specification or policy, (1) to correct mistakes by 11 Epik or the Registry Operator in registering the name or (2) for the resolution of disputes concerning the Registered 12 Name.
13 3.7.7.12 The Registered Name Holder shall indemnify and hold harmless Epik and its directors, officers, 14 employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including 15 reasonable legal fees and expenses) arising out of or related to the Registered Name Holder`s domain name 16 registration.
17 3.7.8 Epik shall abide by any specifications or policies requiring reasonable and commercially practicable (a) 18 verification, at the time of registration, of contact information associated with a Registered Name sponsored by 19 Epik or (b) periodic re-verification of such information. Epik shall, upon notification by any person of an inaccuracy 20 in the contact information associated with a Registered Name sponsored by Epik, take reasonable steps to 21 investigate that claimed inaccuracy. In the event Epik learns of inaccurate contact information associated with a 22 Registered Name it sponsors, it shall take reasonable steps to correct that inaccuracy.
23 3.7.9 Epik hereby abides by any ICANN adopted specifications or policies prohibiting or restricting warehousing of 24 or speculation in domain names by Epiks.
25 3.7.10 Nothing in this Agreement prescribes or limits the amount Epik may charge Registered Name Holders for 26 registration of Registered Names.
27 Billing Agreement 28 4.1 Epik Fees 29 Except as otherwise noted, creating a user account with Epik is free. We do charge fees for certain Services and 30 You are given an opportunity to review and accept the fees that will be charged in connection with such Services. 31 You are responsible for all applicable taxes (except for Epik`s income taxes), costs, hardware, software, services 32 and all other costs and expenses related to the Services or Your activity conducted through the Site. Epik may, in 33 its sole discretion, add, delete or change any of the Services provided or fees charged by Epik. No advance notice 34 is required for any prospectively-effective change in Services offered or fees charged therefore. 35 Unless otherwise stated, all fees and currency amounts are quoted in US Dollars. The fees charged for Epik 36 services that are specified by Epik are considered to be end prices and are understood to include any applicable 37 taxes.
38 4.2 Saved Payment Methods 39 You can store details for one or more forms of payment (Funding Sources) at Epik. And you agree that Epik may 40 store such details to facilitate future payments made by you, unless you select not to save your payment details 41 when an unsaved Funding Source is being used for payment through the Epik shopping cart. Within your account 42 at Epik.com, you can view, edit, and remove any saved Funding Source.
43 4.3 Scheduled Payments 44 A variety of Epik products and services imply or may utilize recurring or scheduled payments. Typically these are 45 billed annually or monthly. Examples of such services include but are not limited to the following: hosting, domain 1 auto-renewal, installment payments for domain Rental and Acquisition Plans. Any recurring or scheduled payments 2 to which you, as an Epik customer, have agreed or to which you subsequently agree, unless canceled by you 3 through Epik, may be charged to you without additional action by you. Within your Epik.com account, you can view 4 any recurring or scheduled payment and cancel it, as long as it has not already been charged. You agree that Epik 5 may charge any Funding Source saved in your account for any recurring or scheduled payments to which you 6 have agreed or to which you subsequently agree. And you recognize that this Funding Source may differ from the 7 Funding Source used in previous payments for the same Epik product or service and may also differ from the 8 Funding Source used for other scheduled or recurring payments. 9 10 In the event that any Funding Source cannot, for whatever reason, be successfully charged for a scheduled or 11 recurring payment, you agree that Epik may attempt to re-charge that same Funding Source or may attempt to 12 charge any other saved Funding Source, possibly resulting in multiple charge attempts, until either the charge is 13 successfully processed or until the sequence of charge attempts is canceled by You or by Epik. For all scheduled 14 or recurring payments approved by You, You agree to hold Epik blameless for: (1) any overdraft fees, interest fees, 15 or other fees that might be charged to You by the company associated with any of Your Funding Sources; and (2) 16 any inconvenience that You may incur as a result of one or more charge attempts made by Epik. When multiple 17 Funding Sources are saved in Your Epik account, Epik endeavors to charge those Funding Sources in a prescribed 18 sequence, beginning with one Funding Source and possibly continuing to another Funding Source if charges to 19 earlier Funding Sources in the sequence have failed. You acknowledge that descriptions of this sequence are only 20 predictions of expected system behavior, and you agree that Epik may, in practice, deviate from the prescribed 21 sequence or descriptions thereof. 22 23 For questions about the frequency or scheduling of recurring payments, You should consult the terms for the Epik 24 product or service in question. For questions about the prescribed sequence of Funding Sources or the number of 25 charge attempts that might be made if a scheduled payment fails, please contact [email protected].
26 5. Epik Services and Applicable Terms 27 5.1. Description of Service 28 DOMAIN NAME REGISTRATION. We are an accredited registrar with the Internet Corporation for Assigned 29 Names and Numbers ("ICANN") for Top Level Domain Names ("TLDs") (such as .com, .net, .org, etc.). ICANN 30 oversees registrations and other aspects of the TLDs. Domain name registrations are not effective until the registry 31 administrator puts them into effect. Domain name registrations are only for limited terms, terms which end on the 32 expiration date. For domain names which are created as a new registration out of the available namespace, the 33 term begins on the date the domain name registration is acknowledged by the applicable registry; for domain 34 names registrations which were not returned to the available namespace, the term begins on the date the previous 35 registrant`s domain name registration was acknowledged by the applicable registry. You agree that we are not 36 liable or responsible in any way for any errors, omissions or any other actions by the registry administrator arising 37 out of or related to a request to register, renew, modify the settings for, or transfer of a domain name registration 38 (our limitation of liability is explained further, below). You further agree that domain name registration is a service, 39 that domain name registrations do not exist independently from services provided pursuant to this or a similar 40 registration agreement with a registrar, and that domain name registration services do not create a property 41 interest.
42 AFTER MARKET DOMAIN NAMES. We offer for sale domain names that are registered to third parties (also 43 known as aftermarket domain names) in a variety of top level domain names ("TLDs") ("After Market Domain 44 Name(s)"). All After Market Domain Name registrations are offered on a first come, first served basis. If you are the 45 first to complete an After Market Domain Name registration application for a particular domain name, including 46 payment of the purchase price we designate, we will initiate a transfer of the relevant After Market Domain Name to 47 your Account. If the After Market Domain Name is at another domain registrar at the time of your purchase, we will 48 transfer your purchased After Market Domain Name to us. If the After Market Domain Name is already located with 49 us as the domain registrar at the time of your purchase, you are responsible for all renewal fees. Any subsequent 50 renewals of the After Market Domain Name will be charged at the then-current renewal fee. Once you submit your 51 order for an After Market Domain Name, you have entered into a valid, binding and enforceable contract to pay the 52 designated purchase price for the After Market Domain Name. Because we are selling After Market Domain Names 53 initially registered to third parties, we have no control and make no representations regarding the accuracy or 54 legality of domain names advertised, the accuracy or legality of any domain name listing, or the right and the ability 55 of the third party seller to transfer the After Market Domain Name or complete the transaction. We do not control 1 whether or not third party sellers will complete a transaction. We reserve the right to reject or cancel your After 2 Market Domain Name registration for any reason including, but not limited to, any pricing errors. In the event your 3 After Market Domain Name registration is rejected or cancelled by us, for any reason, we will refund in full the 4 amount of the purchase price for the After Market Domain Name as your sole remedy. 5 Once the After Market Domain Name is transferred into your Account, such After Market Domain Name may not be 6 transferred away from us to another registrar during the first 60 days following the transfer, during which time the 7 After Market Domain Name may be placed on transfer lock. All of your obligations under this Agreement which 8 apply to the registration or renewal of domain name(s) created by you apply to any After Market Domain Name(s) 9 acquired by you, including but not limited to prohibition against any Illegal Uses.
10 As a related service, and upon separate agreement with You, Epik Service hosts users’ sites and provides them 11 with development, management, and reporting tools to create unique, media-rich Web properties. To develop on a 12 specific domain name, the User has to forward his/her domain to a URL or a nameserver specified by Epik. For 13 further information on these related services please contact us directly.
14 5.2. Costs 15 See article 4 above 16 5.3. User Obligations 17 Users who utilize the Service are obligated and solely responsible for verifying that their use of the Service with 18 his/her domain names does not and will not violate the rights of any third parties, including, but not limited to, 19 trademark rights, naming rights, and rights protected by unfair competition laws. In addition, should User receive 20 notice from a third party regarding their use of Epik Service the User is obligated to immediately contact Epik and 21 provide any material related to such notice. 22 USER HEREBY INDEMNIFIES EPIK IN FULL SCOPE FROM ANY AND ALL POSSIBLE CLAIMS AGAINST EPIK 23 IN RELATION TO SELLER`S VIOLATION OF THESE OBLIGATIONS 24 5.4. Notice of Potential Violation of Third Party Rights 25 In the event that Epik has been notified by a third party that User`s use of the Epik Service may infringe the rights 26 of a third party, Epik reserves the right to immediately suspend the Epik Service without prior notice and to prohibit 27 the User from using the affected domain name with the Epik Service. 28 5. 5. Term and Grace Period 29 The term of this Agreement shall continue in full force and effect as long as you have any domain name registered 30 through Epik or as long as you are employing any Service(s). You agree that you will not transfer any domain 31 name registered through Epik to another domain name registrar during the first sixty (60) calendar days from its 32 initial registration date.. All domain registrations are final. Upon expiration of your domain, Epik will at its own 33 discretion provide a 15 day grace period during which the domain can be renewed for 2 or more years. After the 34 grace period, the domain can be recovered via the domain redemption process. For more information, see 35 - Expired Registration Recovery Policy 36 5. 6. Changes to this Domain Name Registration Agreement and Termination 37 This Agreement will change over time in response to changes in the requirements of governments and 38 administrative bodies, legislation and changes in the nature of industry. If, as a result of such a change to this 39 Agreement, you no longer agree with its term, you agree that your exclusive remedy is to transfer your domain 40 name registration services to another registrar or request Epik to cancel your domain name registration and/or 41 related Services. Should you elect to cancel the Agreement with Epik, you will not receive a refund for any fees you 42 may have paid to Epik. If you continue to use the Services following a change in this Agreement and/or the 43 Services, your continued use of the Services indicates your consent to the changes. Any such revision or change 44 will be binding and effective within 30 calendar days of the date on which the revised Agreement or change to the 45 terms of the Service(s) is posted to the website of Epik or 15 calendar days after notification of the change in terms 46 is sent to the e-mail address provided by you in association with your domain name registration. You agree to 47 review this Agreement periodically to make yourself aware of any such revisions. 48 Epik reserves the right to terminate provision of the Epik Service at any time, without notice or reason. If we have 49 grounds to terminate or suspend Service(s) with respect to one domain name or in relation to other Service(s) 50 provided through your account, we may terminate or suspend all Service(s) provided through your account, 51 including Service(s) to other domain names maintained by you with us. You further acknowledge and agree that 52 your registration of a domain name is subject to suspension, cancellation or transfer by any ICANN procedure, by 53 any registrar or registry administrator procedures approved by an ICANN-adopted policy, to correct mistakes by us, 54 another registrar or the registry administrator in administering the domain name or for the resolution of disputes 55 concerning the domain name. 1 5.7. Intellectual Property 2 Epik maintains all right, title and interest, including without limitation all Intellectual Property Rights relating to the 3 Epik Service. Any rights not expressly granted herein are reserved. User shall not, and shall not allow any third 4 party to: (a) modify, adapt, translate, prepare derivative works from, decompile (accept to the extent allowed by 5 law), reverse engineer, disassemble, or otherwise attempt to derive source code from the Epik Service, or any 6 other technology or documentation obtained from the Epik Service; (b) crawl, index or in any non-transitory manner 7 store or cache information obtained from the Epik Service which is improper; or (c) engage in any action or practice 8 that reflects poorly on Epik. 9 User owns all proprietary rights to their domain names and any content placed on websites that originated from the 10 User. The User shall be obliged to ensure and guarantee that any and all contents used or provided by the User 11 may be used for such purpose. User represents and warrants that all required licenses have been acquired and no 12 rights of third parties, including, but not limited to, trademarks, copyrights, proprietary rights, or other applicable 13 laws are violated.
14 THE USER HEREBY INDEMNIFIES EPIK IN FULL SCOPE FROM ANY AND ALL POSSIBLE CLAIMS AGAINST 15 EPIK IN RELATION TO SELLER`S VIOLATION OF THESE OBLIGATIONS.
16 6. Transfers of Domain Names 17 You agree that transfer of your domain name(s) services shall be governed by ICANN`s transfer policy, available 18 at http://www.icann.org/transfers/, as this policy may be modified from time to time. You agree that we may place a 19 "Registrar Lock" on your domain name services and that this will prevent your domain name services from being 20 transferred without your authorization, though we are not required to do so. By allowing your domain name 21 services to remain locked, you provide express objection to any and all transfer requests until the lock is removed. 22 To transfer your domain name(s) you should first login to your account to lock or unlock your domain name(s) 23 and/or to obtain the EPP "AuthCode" which is required to transfer domain services in an EPP registry (such as 24 .org). Only the registrant and the administrative contacts listed in the WHOIS information may approve or deny a 25 transfer request. Without limitation, domain name services may not be transferred within 60 calendar days of initial 26 registration, within 60 calendar days of a transfer, if there is a dispute regarding the identity of the domain name 27 registrant, if you are bankrupt, or if you fail to pay fees when due. Transfer requests typically take five business 28 days to be processed. A transfer will not be processed if, during this time, the domain name registration services 29 expire in which event you may need to reinstate the transfer request. You may be required to resubmit a transfer 30 request if there is a communication failure. AS A CONSEQUENCE, YOU ACKNOWLEDGE THAT YOU ASSUME 31 ALL RISK FOR FAILURE OF A TRANSFER IF THE TRANSFER PROCESS IS INITIATED CLOSE TO THE END 32 OF A REGISTRATION TERM.
33 7. Liability Disclaimer and Indemnification 34 Epik is in no way responsible for the content of any web site owned or operated by a third party that may be linked 35 to or from the Site via hyperlink, whether such hyperlink is provided by Epik or by a third party. No judgment or 36 warranty is made with respect to the accuracy, timeliness or suitability of the content of any web site to which the 37 Site may link, including information on the web site regarding the Epik Site. By providing access to other web Sites, 38 neither Epik nor its affiliates are recommending the purchase or sale of the stock issued by any company, nor are 39 they endorsing products or services offered by any web site`s sponsoring organization. 40 YOU AGREE THAT USE OF EPIK`S SERVICES AND THE SITE IS AT YOUR SOLE RISK AND THAT THE 41 SERVICES ARE PROVIDED ON AN "AS IS" AND AN "AS AVAILABLE" BASIS. EPIK EXPRESSLY DISCLAIMS 42 ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED 43 WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. 44 EPIK MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THEY WILL 45 BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NOR DOES EPIK MAKE ANY WARRANTY AS TO 46 THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR 47 RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SITE. YOU UNDERSTAND AND AGREE THAT 48 YOUR USE OF ANY MATERIAL AND/OR DATA DOWNLOADED FROM THE SITE OR ANY SERVICES 49 OBTAINED THROUGH OR PROVIDED BY EPIK IS AT YOUR SOLE DISCRETION AND RISK AND THAT YOU 50 WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM ANY SUCH DOWNLOAD OR USE 51 OF SUCH INFORMATION OR OTHER RELATED TRANSACTION. NO ADVICE OR INFORMATION THAT YOU 52 MAY OBTAIN FROM EPIK OR THROUGH THE SERVICES PROVIDED BY EPIK SHALL CREATE ANY 53 WARRANTY NOT EXPRESSLY STATED THEREIN. 1 In addition, You agree to indemnify and hold domain registries with which Epik LLC conducts business, such as 2 Verisign Inc., harmless from any loss, liability, damages, or expense, including reasonable attorneys` fees, arising 3 out of any breach of any representation or warranty provided in this Agreement, any negligence or willful 4 misconduct by You, or any allegation that Your account infringes a third person`s copyright, trademark, service 5 mark, or proprietary or intellectual property right, or misappropriates a third person`s trade secrets. This 6 indemnification is in addition to any indemnification required of You elsewhere. Should Verisign Inc. be notified of a 7 pending law suit, or receive notice of the filing of a law suit, Verisign Inc. may seek a written confirmation from You 8 concerning Your obligation to indemnify Verisign Inc. Your failure to provide such a confirmation may be considered 9 a breach of this agreement. You agree that Verisign Inc. shall have the right to participate in the defense of any 10 such claim through counsel of its own choosing. You agree to notify Verisign Inc. of any such claim promptly in 11 writing and to allow Verisign Inc. to control the proceedings. You agree to cooperate fully with Verisign Inc. during 12 such proceedings.
13 Without limitation, the following are not included in the Services: We cannot and do not check to see whether the 14 domain name(s) you select, or the use you make of the domain name(s), or other of the Service(s), infringes legal 15 rights of others. It is your responsibility to know whether or not the domain name(s) you select or use infringes legal 16 rights of others. We might be ordered by a court to cancel, modify, or transfer your domain name; it is your 17 responsibility to list accurate contact information in association with your account and to communicate with 18 litigants, potential litigants, and governmental authorities. It is not our responsibility to forward court orders or other 19 communications to you. We will comply with court orders unless you contact us to contest the order.
20 Immediately after the expiration of the term of domain name registration services and before deletion of the domain 21 name in the applicable registry`s database, you acknowledge that we may direct the domain name to name- 22 servers and IP address(es) designated by us, including, without limitation, to no IP address or to IP address(es) 23 which host a parking page or a commercial search engine that may display advertisements, and you acknowledge 24 that we may either leave your WHOIS information intact or that we may change the contact information in the 25 WHOIS output for the expired domain name so that you are no longer the listed registrant of the expired domain 26 name. 27 You agree that, regardless of any statute or law to the contrary, except as prohibited by law, any claim or cause of 28 action arising out of or related to this Agreement, the Site, or Epik`s products or Services, must be commenced 29 within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
30 IN NO EVENT SHALL EPIK, ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, OR 31 SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL 32 DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SERVICES, OR THIS AGREEMENT 33 (HOWEVER ARISING, INCLUDING NEGLIGENCE). EPIK`S LIABILITY, AND THE LIABILITY OF ITS AFFILIATES, 34 SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES 35 IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU HAVE PAID TO 36 US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. YOU AGREE TO 37 INDEMNIFY AND HOLD EPIK AND (AS APPLICABLE) EPIK`S PARENT, SUBSIDIARIES, AFFILIATES, 38 OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, 39 INCLUDING REASONABLE ATTORNEYS` FEES, MADE BY A THIRD PARTY DUE TO OR ARISING OUT OF 40 YOUR USE OF THE SITE OR THE SERVICES, YOUR BREACH OF THIS AGREEMENT OR THE DOCUMENTS 41 IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD 42 PARTY.
43 8. Dispute Resolution Policy 44 You agree to the Uniform Domain Name Dispute Resolution Policy ("UDRP"), a copy of which is available 45 at and http://www.icann.org/dndr/udrp/policy.htm. You agree that the UDRP may be changed by ICANN (or 46 ICANN`s successor) at any time and that such a change will be binding upon you. You agree that, if the registration 47 or reservation of your domain name is challenged by a third party, you will be subject to the provisions specified in 48 the UDRP in effect at the time your domain name registration is disputed by the third party. You also agree that, in 49 the event a domain name dispute arises with any third party, you will indemnify and hold us harmless pursuant to 50 the terms and conditions of the UDRP. You also understand that it is important for you to regularly monitor email 51 sent to the email address associated with your account and domain names because, among other reasons, if a 1 dispute arises regarding Services provided to you, you may lose your rights to receive the Services if you do not 2 respond expeditiously to an email sent in conjunction therewith. 3 9. General 4 Epik provides the Services and manages the Site from its offices in Seattle, WA. This Agreement is governed by 5 the laws of the State of Washington, USA, without regard to its choice of law rules. You hereby consent to the 6 jurisdiction of, and venue in, courts located in King County, Washington, USA in all disputes arising out of or 7 relating to the Site. In addition, You hereby consent to the exclusive jurisdiction of, and venue in, such courts for 8 any action commenced by You against Epik or its affiliates in any dispute arising out of or relating to the Site. Use 9 of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and 10 conditions, including, without limitation, this paragraph. You agree that no joint venture, partnership, employment, 11 or agency relationship exists between You and Epik as a result of this Agreement or use of the Services or the Site. 12 Epik`s performance of this Agreement is subject to existing laws and legal process, and nothing contained in this 13 Agreement is in derogation of Epik`s right to comply with governmental, court and law enforcement requests or 14 requirements relating to Your use of the Services or the Site or information provided to or gathered by Epik with 15 respect to such use. If any part of this Agreement is determined to be invalid or unenforceable pursuant to 16 applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then 17 the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most 18 closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. 19 Unless otherwise specified herein, this Agreement constitutes the entire agreement between the user and Epik with 20 respect to the Services and the Site and it supersedes all prior or contemporaneous communications and 21 proposals, whether electronic, oral or written, between the user and Epik with respect to the Site. A printed version 22 of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative 23 proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as 24 other business documents and records originally generated and maintained in printed form, and any such printed, 25 true, and accurate copy shall be deemed an original document for evidentiary purposes. Any failure of Epik to 26 exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. 27 You may not rent, lease, license, grant a security interest in, or otherwise transfer, assign, or sublicense Your rights 28 hereunder to any third party. At any time, Epik may, in its sole discretion and without providing notice or obtaining 29 Your consent, assign this entire Agreement or delegate some or all of its responsibilities hereunder. All contents on 30 www.Epik.com are Copyright © 2009 Epik, LLC and/or its suppliers. All rights reserved.
31 10. Epik Contact Information 32 Epik, Inc. 33 704 228th Ave NE, 34 Sammamish, WA 98074, USA 35 Tel: +1 (425) 366-8810 36 Fax: 425.440.3749 37 Email: info (at) epik.com 38 Effective Date: 1/1/2012 39 Posting Date: 5/3/2012 40 Updated on: 7/27/2012
41 42 43 44 45 46 47 48 49 50 51 52 1 EXHIBIT B 2 3
4 Uniform Domain Name Dispute Resolution 5 Policy
6 This page is available in: 7 • English 8 9 Policy Adopted: August 26, 1999 10 Implementation Documents Approved: October 24, 1999 11 Notes:
12 1. This policy is now in effect. See www.icann.org/udrp/udrp-schedule.htm for the 13 implementation schedule.
14 2. This policy has been adopted by all ICANN-accredited registrars. It has also been 15 adopted by certain managers of country-code top-level domains (e.g., .nu, .tv, .ws).
16 3. The policy is between the registrar (or other registration authority in the case of a 17 country-code top-level domain) and its customer (the domain-name holder or 18 registrant). Thus, the policy uses "we" and "our" to refer to the registrar and it uses 19 "you" and "your" to refer to the domain-name holder.
20 Uniform Domain Name Dispute Resolution Policy 21 (As Approved by ICANN on October 24, 1999) 22 1. Purpose. This Uniform Domain Name Dispute Resolution Policy (the "Policy") has been adopted 23 by the Internet Corporation for Assigned Names and Numbers ("ICANN"), is incorporated by 24 reference into your Registration Agreement, and sets forth the terms and conditions in connection with 25 a dispute between you and any party other than us (the registrar) over the registration and use of an 26 Internet domain name registered by you. Proceedings under Paragraph 4 of this Policy will be 27 conducted according to the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules of 28 Procedure"), which are available at https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en, 29 and the selected administrative-dispute-resolution service provider's supplemental rules. 30 2. Your Representations. By applying to register a domain name, or by asking us to maintain or 31 renew a domain name registration, you hereby represent and warrant to us that (a) the statements that 32 you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the 33 registration of the domain name will not infringe upon or otherwise violate the rights of any third 34 party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not 1 knowingly use the domain name in violation of any applicable laws or regulations. It is your 2 responsibility to determine whether your domain name registration infringes or violates someone else's 3 rights. 4 3. Cancellations, Transfers, and Changes. We will cancel, transfer or otherwise make changes to 5 domain name registrations under the following circumstances: 6 a. subject to the provisions of Paragraph 8, our receipt of written or appropriate electronic 7 instructions from you or your authorized agent to take such action;
8 b. our receipt of an order from a court or arbitral tribunal, in each case of competent 9 jurisdiction, requiring such action; and/or
10 c. our receipt of a decision of an Administrative Panel requiring such action in any 11 administrative proceeding to which you were a party and which was conducted under this 12 Policy or a later version of this Policy adopted by ICANN. (See Paragraph 13 4(i) and (k) below.)
14 We may also cancel, transfer or otherwise make changes to a domain name registration in accordance 15 with the terms of your Registration Agreement or other legal requirements. 16 4. Mandatory Administrative Proceeding. 17 This Paragraph sets forth the type of disputes for which you are required to submit to a mandatory 18 administrative proceeding. These proceedings will be conducted before one of the administrative- 19 dispute-resolution service providers listed at www.icann.org/en/dndr/udrp/approved- 20 providers.htm(each, a "Provider"). 21 a. Applicable Disputes. You are required to submit to a mandatory administrative 22 proceeding in the event that a third party (a "complainant") asserts to the applicable 23 Provider, in compliance with the Rules of Procedure, that
24 (i) your domain name is identical or confusingly similar to a trademark or 25 service mark in which the complainant has rights; and
26 (ii) you have no rights or legitimate interests in respect of the domain name; 27 and
28 (iii) your domain name has been registered and is being used in bad faith.
29 In the administrative proceeding, the complainant must prove that each of these three 30 elements are present.
31 b. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a) 32 (iii), the following circumstances, in particular but without limitation, if found by the Panel 33 to be present, shall be evidence of the registration and use of a domain name in bad faith:
34 (i) circumstances indicating that you have registered or you have acquired the 35 domain name primarily for the purpose of selling, renting, or otherwise 1 transferring the domain name registration to the complainant who is the owner 2 of the trademark or service mark or to a competitor of that complainant, for 3 valuable consideration in excess of your documented out-of-pocket costs 4 directly related to the domain name; or
5 (ii) you have registered the domain name in order to prevent the owner of the 6 trademark or service mark from reflecting the mark in a corresponding domain 7 name, provided that you have engaged in a pattern of such conduct; or
8 (iii) you have registered the domain name primarily for the purpose of 9 disrupting the business of a competitor; or
10 (iv) by using the domain name, you have intentionally attempted to attract, for 11 commercial gain, Internet users to your web site or other on-line location, by 12 creating a likelihood of confusion with the complainant's mark as to the source, 13 sponsorship, affiliation, or endorsement of your web site or location or of a 14 product or service on your web site or location.
15 c. How to Demonstrate Your Rights to and Legitimate Interests in the Domain 16 Name in Responding to a Complaint. When you receive a complaint, you should refer 17 to Paragraph 5 of the Rules of Procedure in determining how your response should be 18 prepared. Any of the following circumstances, in particular but without limitation, if found 19 by the Panel to be proved based on its evaluation of all evidence presented, shall 20 demonstrate your rights or legitimate interests to the domain name for purposes 21 of Paragraph 4(a)(ii):
22 (i) before any notice to you of the dispute, your use of, or demonstrable 23 preparations to use, the domain name or a name corresponding to the domain 24 name in connection with a bona fide offering of goods or services; or
25 (ii) you (as an individual, business, or other organization) have been commonly 26 known by the domain name, even if you have acquired no trademark or service 27 mark rights; or
28 (iii) you are making a legitimate noncommercial or fair use of the domain 29 name, without intent for commercial gain to misleadingly divert consumers or 30 to tarnish the trademark or service mark at issue.
31 d. Selection of Provider. The complainant shall select the Provider from among those 32 approved by ICANN by submitting the complaint to that Provider. The selected Provider 33 will administer the proceeding, except in cases of consolidation as described in Paragraph 34 4(f).
35 e. Initiation of Proceeding and Process and Appointment of Administrative Panel. The 36 Rules of Procedure state the process for initiating and conducting a proceeding and for 37 appointing the panel that will decide the dispute (the "Administrative Panel"). 1 f. Consolidation. In the event of multiple disputes between you and a complainant, either 2 you or the complainant may petition to consolidate the disputes before a single 3 Administrative Panel. This petition shall be made to the first Administrative Panel 4 appointed to hear a pending dispute between the parties. This Administrative Panel may 5 consolidate before it any or all such disputes in its sole discretion, provided that the 6 disputes being consolidated are governed by this Policy or a later version of this Policy 7 adopted by ICANN.
8 g. Fees. All fees charged by a Provider in connection with any dispute before an 9 Administrative Panel pursuant to this Policy shall be paid by the complainant, except in 10 cases where you elect to expand the Administrative Panel from one to three panelists as 11 provided in Paragraph 5(b)(iv)of the Rules of Procedure, in which case all fees will be split 12 evenly by you and the complainant.
13 h. Our Involvement in Administrative Proceedings. We do not, and will not, participate 14 in the administration or conduct of any proceeding before an Administrative Panel. In 15 addition, we will not be liable as a result of any decisions rendered by the Administrative 16 Panel.
17 i. Remedies. The remedies available to a complainant pursuant to any proceeding before 18 an Administrative Panel shall be limited to requiring the cancellation of your domain name 19 or the transfer of your domain name registration to the complainant.
20 j. Notification and Publication. The Provider shall notify us of any decision made by an 21 Administrative Panel with respect to a domain name you have registered with us. All 22 decisions under this Policy will be published in full over the Internet, except when an 23 Administrative Panel determines in an exceptional case to redact portions of its decision.
24 k. Availability of Court Proceedings. The mandatory administrative proceeding 25 requirements set forth in Paragraph 4 shall not prevent either you or the complainant from 26 submitting the dispute to a court of competent jurisdiction for independent resolution 27 before such mandatory administrative proceeding is commenced or after such proceeding 28 is concluded. If an Administrative Panel decides that your domain name registration should 29 be canceled or transferred, we will wait ten (10) business days (as observed in the location 30 of our principal office) after we are informed by the applicable Provider of the 31 Administrative Panel's decision before implementing that decision. We will then 32 implement the decision unless we have received from you during that ten (10) business day 33 period official documentation (such as a copy of a complaint, file-stamped by the clerk of 34 the court) that you have commenced a lawsuit against the complainant in a jurisdiction to 35 which the complainant has submitted under Paragraph 3(b)(xiii)of the Rules of Procedure. 36 (In general, that jurisdiction is either the location of our principal office or of your address 37 as shown in our Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure 38 for details.) If we receive such documentation within the ten (10) business day period, we 39 will not implement the Administrative Panel's decision, and we will take no further action, 40 until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) 41 evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; or (iii) a 42 copy of an order from such court dismissing your lawsuit or ordering that you do not have 1 the right to continue to use your domain name.
2 5. All Other Disputes and Litigation. All other disputes between you and any party other than us 3 regarding your domain name registration that are not brought pursuant to the mandatory administrative 4 proceeding provisions of Paragraph 4 shall be resolved between you and such other party through any 5 court, arbitration or other proceeding that may be available. 6 6. Our Involvement in Disputes. We will not participate in any way in any dispute between you and 7 any party other than us regarding the registration and use of your domain name. You shall not name us 8 as a party or otherwise include us in any such proceeding. In the event that we are named as a party in 9 any such proceeding, we reserve the right to raise any and all defenses deemed appropriate, and to take 10 any other action necessary to defend ourselves. 11 7. Maintaining the Status Quo. We will not cancel, transfer, activate, deactivate, or otherwise change 12 the status of any domain name registration under this Policy except as provided in Paragraph 3 above. 13 8. Transfers During a Dispute. 14 a. Transfers of a Domain Name to a New Holder. You may not transfer your domain 15 name registration to another holder (i) during a pending administrative proceeding brought 16 pursuant to Paragraph 4 or for a period of fifteen (15) business days (as observed in the 17 location of our principal place of business) after such proceeding is concluded; or (ii) 18 during a pending court proceeding or arbitration commenced regarding your domain name 19 unless the party to whom the domain name registration is being transferred agrees, in 20 writing, to be bound by the decision of the court or arbitrator. We reserve the right to cancel 21 any transfer of a domain name registration to another holder that is made in violation of 22 this subparagraph.
23 b. Changing Registrars. You may not transfer your domain name registration to another 24 registrar during a pending administrative proceeding brought pursuant to Paragraph 4 or 25 for a period of fifteen (15) business days (as observed in the location of our principal place 26 of business) after such proceeding is concluded. You may transfer administration of your 27 domain name registration to another registrar during a pending court action or arbitration, 28 provided that the domain name you have registered with us shall continue to be subject to 29 the proceedings commenced against you in accordance with the terms of this Policy. In the 30 event that you transfer a domain name registration to us during the pendency of a court 31 action or arbitration, such dispute shall remain subject to the domain name dispute policy 32 of the registrar from which the domain name registration was transferred.
33 9. Policy Modifications. We reserve the right to modify this Policy at any time with the permission 34 of ICANN. We will post our revised Policy at
7 EXHIBIT C
8 Rules for Uniform Domain Name Dispute 9 Resolution Policy (the "Rules")
10 This page is available in: 11 • English العربية • 12 13 • Español 14 • Français 15 • 日本語 16 • 한국어 17 • Português 18 • Pусский 19 • 中文 20 On 17 May 2018 the ICANN Board adopted a Temporary Specification for gTLD Registration 21 Data("Temporary Specification"). The content on this page has been superseded in whole or in part by 22 the Temporary Specification. See the Temporary Specification for the modified or new requirements.
23 As approved by the ICANN Board of Directors on 28 September 2013. 24 These Rules are in effect for all UDRP proceedings in which a complaint is submitted to a 25 provider on or after 31 July 2015. The prior version of the Rules, applicable to all proceedings in 26 which a complaint was submitted to a Provider on or before 30 July 2015, is 27 at https://www.icann.org/resources/pages/rules-be-2012-02-25-en. UDRP Providers may elect to 28 adopt the notice procedures set forth in these Rules prior to 31 July 2015. 29 Administrative proceedings for the resolution of disputes under the Uniform Dispute Resolution Policy 30 adopted by ICANN shall be governed by these Rules and also the Supplemental Rules of the Provider 31 administering the proceedings, as posted on its web site. To the extent that the Supplemental Rules of 32 any Provider conflict with these Rules, these Rules supersede. 1 1. Definitions 2 In these Rules: 3 Complainant means the party initiating a complaint concerning a domain-name 4 registration.
5 ICANN refers to the Internet Corporation for Assigned Names and Numbers.
6 Lock means a set of measures that a registrar applies to a domain name, which 7 prevents at a minimum any modification to the registrant and registrar information 8 by the Respondent, but does not affect the resolution of the domain name or the 9 renewal of the domain name.
10 Mutual Jurisdiction means a court jurisdiction at the location of either (a) the 11 principal office of the Registrar (provided the domain-name holder has submitted in 12 its Registration Agreement to that jurisdiction for court adjudication of disputes 13 concerning or arising from the use of the domain name) or (b) the domain-name 14 holder's address as shown for the registration of the domain name in Registrar's 15 Whois database at the time the complaint is submitted to the Provider.
16 Panel means an administrative panel appointed by a Provider to decide a complaint 17 concerning a domain-name registration.
18 Panelist means an individual appointed by a Provider to be a member of a Panel.
19 Party means a Complainant or a Respondent.
20 Pendency means the time period from the moment a UDRP complaint has been 21 submitted by the Complainant to the UDRP Provider to the time the UDRP decision 22 has been implemented or the UDRP complaint has been terminated.
23 Policy means the Uniform Domain Name Dispute Resolution Policy that is 24 incorporated by reference and made a part of the Registration Agreement.
25 Provider means a dispute-resolution service provider approved by ICANN. A list 26 of such Providers appears at http://www.icann.org/en/dndr/udrp/approved- 27 providers.htm.
28 Registrar means the entity with which the Respondent has registered a domain 29 name that is the subject of a complaint.
30 Registration Agreement means the agreement between a Registrar and a domain- 31 name holder.
32 Respondent means the holder of a domain-name registration against which a 33 complaint is initiated. 1 Reverse Domain Name Hijacking means using the Policy in bad faith to attempt 2 to deprive a registered domain-name holder of a domain name.
3 Supplemental Rules means the rules adopted by the Provider administering a 4 proceeding to supplement these Rules. Supplemental Rules shall not be inconsistent 5 with the Policy or these Rules and shall cover such topics as fees, word and page 6 limits and guidelines, file size and format modalities, the means for communicating 7 with the Provider and the Panel, and the form of cover sheets.
8 Written Notice means hardcopy notification by the Provider to the Respondent of 9 the commencement of an administrative proceeding under the Policy which shall 10 inform the respondent that a complaint has been filed against it, and which shall 11 state that the Provider has electronically transmitted the complaint including any 12 annexes to the Respondent by the means specified herein. Written notice does not 13 include a hardcopy of the complaint itself or of any annexes.
14 2. Communications 15 (a) When forwarding a complaint, including any annexes, electronically to the 16 Respondent, it shall be the Provider's responsibility to employ reasonably available 17 means calculated to achieve actual notice to Respondent. Achieving actual notice, 18 or employing the following measures to do so, shall discharge this responsibility:
19 (i) sending Written Notice of the complaint to all postal-mail and 20 facsimile addresses (A) shown in the domain name's registration data in 21 Registrar's Whois database for the registered domain-name holder, the 22 technical contact, and the administrative contact and (B) supplied by 23 Registrar to the Provider for the registration's billing contact; and
24 (ii) sending the complaint, including any annexes, in electronic form by 25 e-mail to:
26 (A) the e-mail addresses for those technical, administrative, 27 and billing contacts;
28 (B) postmaster@
29 (C) if the domain name (or "www." followed by the domain 30 name) resolves to an active web page (other than a generic 31 page the Provider concludes is maintained by a registrar 32 or ISP for parking domain-names registered by multiple 33 domain-name holders), any e- mail address shown or e-mail 34 links on that web page; and
35 (iii) sending the complaint, including any annexes, to any e-mail 36 address the Respondent has notified the Provider it prefers and, to the 1 extent practicable, to all other e-mail addresses provided to the Provider 2 by Complainant under Paragraph 3(b)(v).
3 (b) Except as provided in Paragraph 2(a), any written communication to 4 Complainant or Respondent provided for under these Rules shall be made 5 electronically via the Internet (a record of its transmission being available), or by 6 any reasonably requested preferred means stated by the Complainant or 7 Respondent, respectively (see Paragraphs 3(b)(iii) and 5(b)(iii)).
8 (c) Any communication to the Provider or the Panel shall be made by the means and 9 in the manner (including, where applicable, the number of copies) stated in the 10 Provider's Supplemental Rules.
11 (d) Communications shall be made in the language prescribed in Paragraph 11.
12 (e) Either Party may update its contact details by notifying the Provider and the 13 Registrar.
14 (f) Except as otherwise provided in these Rules, or decided by a Panel, all 15 communications provided for under these Rules shall be deemed to have been 16 made:
17 (i) if via the Internet, on the date that the communication was 18 transmitted, provided that the date of transmission is verifiable; or, 19 where applicable
20 (ii) if delivered by telecopy or facsimile transmission, on the date 21 shown on the confirmation of transmission; or:
22 (iii) if by postal or courier service, on the date marked on the receipt.
23 (g) Except as otherwise provided in these Rules, all time periods calculated under 24 these Rules to begin when a communication is made shall begin to run on the 25 earliest date that the communication is deemed to have been made in accordance 26 with Paragraph 2(f).
27 (h) Any communication by
28 (i) a Panel to any Party shall be copied to the Provider and to the other 29 Party;
30 (ii) the Provider to any Party shall be copied to the other Party; and
31 (iii) a Party shall be copied to the other Party, the Panel and the 32 Provider, as the case may be. 1 (i) It shall be the responsibility of the sender to retain records of the fact and 2 circumstances of sending, which shall be available for inspection by affected parties 3 and for reporting purposes. This includes the Provider in sending Written Notice to 4 the Respondent by post and/or facsimile under Paragraph 2(a)(i).
5 (j) In the event a Party sending a communication receives notification of non- 6 delivery of the communication, the Party shall promptly notify the Panel (or, if no 7 Panel is yet appointed, the Provider) of the circumstances of the notification. 8 Further proceedings concerning the communication and any response shall be as 9 directed by the Panel (or the Provider).
10 3. The Complaint 11 (a) Any person or entity may initiate an administrative proceeding by submitting a 12 complaint in accordance with the Policy and these Rules to any Provider approved 13 by ICANN. (Due to capacity constraints or for other reasons, a Provider's ability to 14 accept complaints may be suspended at times. In that event, the Provider shall 15 refuse the submission. The person or entity may submit the complaint to another 16 Provider.)
17 (b) The complaint including any annexes shall be submitted in electronic form and 18 shall:
19 (i) Request that the complaint be submitted for decision in accordance 20 with the Policy and these Rules;
21 (ii) Provide the name, postal and e-mail addresses, and the telephone 22 and telefax numbers of the Complainant and of any representative 23 authorized to act for the Complainant in the administrative proceeding;
24 (iii) Specify a preferred method for communications directed to the 25 Complainant in the administrative proceeding (including person to be 26 contacted, medium, and address information) for each of (A) electronic- 27 only material and (B) material including hard copy (where applicable);
28 (iv) Designate whether Complainant elects to have the dispute decided 29 by a single-member or a three-member Panel and, in the event 30 Complainant elects a three-member Panel, provide the names and 31 contact details of three candidates to serve as one of the Panelists (these 32 candidates may be drawn from any ICANN-approved Provider's list of 33 panelists);
34 (v) Provide the name of the Respondent (domain-name holder) and all 35 information (including any postal and e-mail addresses and telephone 36 and telefax numbers) known to Complainant regarding how to contact 37 Respondent or any representative of Respondent, including contact 1 information based on pre-complaint dealings, in sufficient detail to 2 allow the Provider to send the complaint as described in Paragraph 2(a);
3 (vi) Specify the domain name(s) that is/are the subject of the complaint;
4 (vii) Identify the Registrar(s) with whom the domain name(s) is/are 5 registered at the time the complaint is filed;
6 (viii) Specify the trademark(s) or service mark(s) on which the 7 complaint is based and, for each mark, describe the goods or services, if 8 any, with which the mark is used (Complainant may also separately 9 describe other goods and services with which it intends, at the time the 10 complaint is submitted, to use the mark in the future.);
11 (ix) Describe, in accordance with the Policy, the grounds on which the 12 complaint is made including, in particular,
13 (1) the manner in which the domain name(s) is/are identical 14 or confusingly similar to a trademark or service mark in 15 which the Complainant has rights; and
16 (2) why the Respondent (domain-name holder) should be 17 considered as having no rights or legitimate interests in 18 respect of the domain name(s) that is/are the subject of the 19 complaint; and
20 (3) why the domain name(s) should be considered as having 21 been registered and being used in bad faith
22 (The description should, for elements (2) and (3), discuss any aspects 23 of Paragraphs 4(b)and 4(c) of the Policy that are applicable. The 24 description shall comply with any word or page limit set forth in the 25 Provider's Supplemental Rules.);
26 (x) Specify, in accordance with the Policy, the remedies sought;
27 (xi) Identify any other legal proceedings that have been commenced or 28 terminated in connection with or relating to any of the domain name(s) 29 that are the subject of the complaint;
30 (xii) State that Complainant will submit, with respect to any challenges 31 to a decision in the administrative proceeding canceling or transferring 32 the domain name, to the jurisdiction of the courts in at least one 33 specified Mutual Jurisdiction;
34 (xiii) Conclude with the following statement followed by the signature 1 (in any electronic format) of the Complainant or its authorized 2 representative:
3 "Complainant agrees that its claims and remedies 4 concerning the registration of the domain name, the dispute, 5 or the dispute's resolution shall be solely against the 6 domain-name holder and waives all such claims and 7 remedies against (a) the dispute-resolution provider and 8 panelists, except in the case of deliberate wrongdoing, (b) 9 the registrar, (c) the registry administrator, and (d) the 10 Internet Corporation for Assigned Names and Numbers, as 11 well as their directors, officers, employees, and agents."
12 "Complainant certifies that the information contained in this 13 Complaint is to the best of Complainant's knowledge 14 complete and accurate, that this Complaint is not being 15 presented for any improper purpose, such as to harass, and 16 that the assertions in this Complaint are warranted under 17 these Rules and under applicable law, as it now exists or as 18 it may be extended by a good-faith and reasonable 19 argument."; and
20 (xiv) Annex any documentary or other evidence, including a copy of the 21 Policy applicable to the domain name(s) in dispute and any trademark 22 or service mark registration upon which the complaint relies, together 23 with a schedule indexing such evidence.
24 (c) The complaint may relate to more than one domain name, provided that the 25 domain names are registered by the same domain-name holder.
26 4. Notification of Complaint 27 (a) The Provider shall submit a verification request to the Registrar. The verification 28 request will include a request to Lock the domain name.
29 (b) Within two (2) business days of receiving the Provider's verification request, the 30 Registrar shall provide the information requested in the verification request and 31 confirm that a Lock of the domain name has been applied. The Registrar shall not 32 notify the Respondent of the proceeding until the Lock status has been applied. The 33 Lock shall remain in place through the remaining Pendency of 34 the UDRP proceeding. Any updates to the Respondent's data, such as through the 35 result of a request by a privacy or proxy provider to reveal the underlying customer 36 data, must be made before the two (2) business day period concludes or before the 37 Registrar verifies the information requested and confirms the Lock to 38 the UDRP Provider, whichever occurs first. Any modification(s) of the 39 Respondent's data following the two (2) business day period may be addressed by 1 the Panel in its decision.
2 (c) The Provider shall review the complaint for administrative compliance with the 3 Policy and these Rules and, if in compliance, shall forward the complaint, including 4 any annexes, electronically to the Respondent and Registrar and shall send Written 5 Notice of the complaint (together with the explanatory cover sheet prescribed by 6 the Provider's Supplemental Rules) to the Respondent, in the manner prescribed 7 by Paragraph 2(a), within three (3) calendar days following receipt of the fees to be 8 paid by the Complainant in accordance with Paragraph 19.
9 (d) If the Provider finds the complaint to be administratively deficient, it shall 10 promptly notify the Complainant and the Respondent of the nature of the 11 deficiencies identified. The Complainant shall have five (5) calendar days within 12 which to correct any such deficiencies, after which the administrative proceeding 13 will be deemed withdrawn without prejudice to submission of a different complaint 14 by Complainant.
15 (e) If the Provider dismisses the complaint due to an administrative deficiency, or 16 the Complainant voluntarily withdraws its complaint, the Provider shall inform the 17 Registrar that the proceedings have been withdrawn, and the Registrar shall release 18 the Lock within one (1) business day of receiving the dismissal or withdrawal 19 notice from the Provider.
20 (f) The date of commencement of the administrative proceeding shall be the date on 21 which the Provider completes its responsibilities under Paragraph 2(a) in 22 connection with sending the complaint to the Respondent.
23 (g) The Provider shall immediately notify the Complainant, the Respondent, the 24 concerned Registrar(s), and ICANN of the date of commencement of the 25 administrative proceeding. The Provider shall inform the Respondent that any 26 corrections to the Respondent's contact information during the remaining Pendency 27 of the UDRP proceedings shall be communicated to the Provider further to Rule 28 5(c)(ii) and 5(c)(iii).
29 5. The Response 30 (a) Within twenty (20) days of the date of commencement of the administrative 31 proceeding the Respondent shall submit a response to the Provider.
32 (b) The Respondent may expressly request an additional four (4) calendar days in 33 which to respond to the complaint, and the Provider shall automatically grant the 34 extension and notify the Parties thereof. This extension does not preclude any 35 additional extensions that may be given further to 5(d) of the Rules.
36 (c) The response, including any annexes, shall be submitted in electronic form and 37 shall: 1 (i) Respond specifically to the statements and allegations contained in 2 the complaint and include any and all bases for the Respondent 3 (domain-name holder) to retain registration and use of the disputed 4 domain name (This portion of the response shall comply with any word 5 or page limit set forth in the Provider's Supplemental Rules.);
6 (ii) Provide the name, postal and e-mail addresses, and the telephone 7 and telefax numbers of the Respondent (domain-name holder) and of 8 any representative authorized to act for the Respondent in the 9 administrative proceeding;
10 (iii) Specify a preferred method for communications directed to the 11 Respondent in the administrative proceeding (including person to be 12 contacted, medium, and address information) for each of (A) electronic- 13 only material and (B) material including hard copy (where applicable);
14 (iv) If Complainant has elected a single-member panel in the complaint 15 (see Paragraph 3(b)(iv)), state whether Respondent elects instead to 16 have the dispute decided by a three-member panel;
17 (v) If either Complainant or Respondent elects a three-member Panel, 18 provide the names and contact details of three candidates to serve as 19 one of the Panelists (these candidates may be drawn from any ICANN- 20 approved Provider's list of panelists);
21 (vi) Identify any other legal proceedings that have been commenced or 22 terminated in connection with or relating to any of the domain name(s) 23 that are the subject of the complaint;
24 (vii) State that a copy of the response including any annexes has been 25 sent or transmitted to the Complainant, in accordance with Paragraph 26 2(b); and
27 (viii) Conclude with the following statement followed by the signature 28 (in any electronic format) of the Respondent or its authorized 29 representative:
30 "Respondent certifies that the information contained in this 31 Response is to the best of Respondent's knowledge 32 complete and accurate, that this Response is not being 33 presented for any improper purpose, such as to harass, and 34 that the assertions in this Response are warranted under 35 these Rules and under applicable law, as it now exists or as 36 it may be extended by a good-faith and reasonable 37 argument."; and 1 (ix) Annex any documentary or other evidence upon which the 2 Respondent relies, together with a schedule indexing such documents.
3 (d) If Complainant has elected to have the dispute decided by a single-member 4 Panel and Respondent elects a three-member Panel, Respondent shall be required to 5 pay one-half of the applicable fee for a three-member Panel as set forth in the 6 Provider's Supplemental Rules. This payment shall be made together with the 7 submission of the response to the Provider. In the event that the required payment is 8 not made, the dispute shall be decided by a single-member Panel.
9 (e) At the request of the Respondent, the Provider may, in exceptional cases, extend 10 the period of time for the filing of the response. The period may also be extended 11 by written stipulation between the Parties, provided the stipulation is approved by 12 the Provider.
13 (f) If a Respondent does not submit a response, in the absence of exceptional 14 circumstances, the Panel shall decide the dispute based upon the complaint.
15 6. Appointment of the Panel and Timing of Decision 16 (a) Each Provider shall maintain and publish a publicly available list of panelists 17 and their qualifications.
18 (b) If neither the Complainant nor the Respondent has elected a three-member 19 Panel (Paragraphs 3(b)(iv) and 5(b)(iv)), the Provider shall appoint, within five (5) 20 calendar days following receipt of the response by the Provider, or the lapse of the 21 time period for the submission thereof, a single Panelist from its list of panelists. 22 The fees for a single-member Panel shall be paid entirely by the Complainant.
23 (c) If either the Complainant or the Respondent elects to have the dispute decided 24 by a three-member Panel, the Provider shall appoint three Panelists in accordance 25 with the procedures identified in Paragraph 6(e). The fees for a three-member Panel 26 shall be paid in their entirety by the Complainant, except where the election for a 27 three-member Panel was made by the Respondent, in which case the applicable fees 28 shall be shared equally between the Parties.
29 (d) Unless it has already elected a three-member Panel, the Complainant shall 30 submit to the Provider, within five (5) calendar days of communication of a 31 response in which the Respondent elects a three-member Panel, the names and 32 contact details of three candidates to serve as one of the Panelists. These candidates 33 may be drawn from any ICANN-approved Provider's list of panelists.
34 (e) In the event that either the Complainant or the Respondent elects a three- 35 member Panel, the Provider shall endeavor to appoint one Panelist from the list of 36 candidates provided by each of the Complainant and the Respondent. In the event 37 the Provider is unable within five (5) calendar days to secure the appointment of a 1 Panelist on its customary terms from either Party's list of candidates, the Provider 2 shall make that appointment from its list of panelists. The third Panelist shall be 3 appointed by the Provider from a list of five candidates submitted by the Provider 4 to the Parties, the Provider's selection from among the five being made in a manner 5 that reasonably balances the preferences of both Parties, as they may specify to the 6 Provider within five (5) calendar days of the Provider's submission of the five- 7 candidate list to the Parties.
8 (f) Once the entire Panel is appointed, the Provider shall notify the Parties of the 9 Panelists appointed and the date by which, absent exceptional circumstances, the 10 Panel shall forward its decision on the complaint to the Provider.
11 7. Impartiality and Independence 12 A Panelist shall be impartial and independent and shall have, before accepting appointment, 13 disclosed to the Provider any circumstances giving rise to justifiable doubt as to the Panelist's 14 impartiality or independence. If, at any stage during the administrative proceeding, new 15 circumstances arise that could give rise to justifiable doubt as to the impartiality or 16 independence of the Panelist, that Panelist shall promptly disclose such circumstances to the 17 Provider. In such event, the Provider shall have the discretion to appoint a substitute Panelist.
18 8. Communication Between Parties and the Panel 19 No Party or anyone acting on its behalf may have any unilateral communication with the Panel. 20 All communications between a Party and the Panel or the Provider shall be made to a case 21 administrator appointed by the Provider in the manner prescribed in the Provider's 22 Supplemental Rules.
23 9. Transmission of the File to the Panel 24 The Provider shall forward the file to the Panel as soon as the Panelist is appointed in the case 25 of a Panel consisting of a single member, or as soon as the last Panelist is appointed in the case 26 of a three-member Panel.
27 10.General Powers of the Panel 28 (a) The Panel shall conduct the administrative proceeding in such manner as it 29 considers appropriate in accordance with the Policy and these Rules.
30 (b) In all cases, the Panel shall ensure that the Parties are treated with equality and 31 that each Party is given a fair opportunity to present its case.
32 (c) The Panel shall ensure that the administrative proceeding takes place with due 33 expedition. It may, at the request of a Party or on its own motion, extend, in 34 exceptional cases, a period of time fixed by these Rules or by the Panel. 1 (d) The Panel shall determine the admissibility, relevance, materiality and weight of 2 the evidence.
3 (e) A Panel shall decide a request by a Party to consolidate multiple domain name 4 disputes in accordance with the Policy and these Rules.
5 11.Language of Proceedings 6 (a) Unless otherwise agreed by the Parties, or specified otherwise in the 7 Registration Agreement, the language of the administrative proceeding shall be the 8 language of the Registration Agreement, subject to the authority of the Panel to 9 determine otherwise, having regard to the circumstances of the administrative 10 proceeding.
11 (b) The Panel may order that any documents submitted in languages other than the 12 language of the administrative proceeding be accompanied by a translation in whole 13 or in part into the language of the administrative proceeding.
14 12.Further Statements 15 In addition to the complaint and the response, the Panel may request, in its sole discretion, 16 further statements or documents from either of the Parties.
17 13.In-Person Hearings 18 There shall be no in-person hearings (including hearings by teleconference, videoconference, 19 and web conference), unless the Panel determines, in its sole discretion and as an exceptional 20 matter, that such a hearing is necessary for deciding the complaint.
21 14.Default 22 (a) In the event that a Party, in the absence of exceptional circumstances, does not 23 comply with any of the time periods established by these Rules or the Panel, the 24 Panel shall proceed to a decision on the complaint.
25 (b) If a Party, in the absence of exceptional circumstances, does not comply with 26 any provision of, or requirement under, these Rules or any request from the Panel, 27 the Panel shall draw such inferences therefrom as it considers appropriate.
28 15.Panel Decisions 29 (a) A Panel shall decide a complaint on the basis of the statements and documents 30 submitted and in accordance with the Policy, these Rules and any rules and 31 principles of law that it deems applicable. 1 (b) In the absence of exceptional circumstances, the Panel shall forward its decision 2 on the complaint to the Provider within fourteen (14) days of its appointment 3 pursuant to Paragraph 6.
4 (c) In the case of a three-member Panel, the Panel's decision shall be made by a 5 majority.
6 (d) The Panel's decision shall be in writing, provide the reasons on which it is 7 based, indicate the date on which it was rendered and identify the name(s) of the 8 Panelist(s).
9 (e) Panel decisions and dissenting opinions shall normally comply with the 10 guidelines as to length set forth in the Provider's Supplemental Rules. Any 11 dissenting opinion shall accompany the majority decision. If the Panel concludes 12 that the dispute is not within the scope of Paragraph 4(a) of the Policy, it shall so 13 state. If after considering the submissions the Panel finds that the complaint was 14 brought in bad faith, for example in an attempt at Reverse Domain NameHijacking 15 or was brought primarily to harass the domain-name holder, the Panel shall declare 16 in its decision that the complaint was brought in bad faith and constitutes an abuse 17 of the administrative proceeding.
18 16.Communication of Decision to Parties 19 (a) Within three (3) business days after receiving the decision from the Panel, the 20 Provider shall communicate the full text of the decision to each Party, the concerned 21 Registrar(s), and ICANN. The concerned Registrar(s) shall within three (3) business 22 days of receiving the decision from the Provider communicate to each Party, the 23 Provider, and ICANN the date for the implementation of the decision in accordance 24 with the Policy.
25 (b) Except if the Panel determines otherwise (see Paragraph 4(j) of the Policy), the 26 Provider shall publish the full decision and the date of its implementation on a 27 publicly accessible web site. In any event, the portion of any decision determining a 28 complaint to have been brought in bad faith (see Paragraph 15(e) of these Rules) 29 shall be published.
30 17.Settlement or Other Grounds for Termination 31 (a) If, before the Panel's decision, the Parties agree on a settlement, the Panel shall 32 terminate the administrative proceeding. A settlement shall follow steps 17(a)(i) – 33 17(a)(vii):
34 (i) The Parties provide written notice of a request to suspend the 35 proceedings because the parties are discussing settlement to the 36 Provider. 1 (ii) The Provider acknowledges receipt of the request for suspension 2 and informs the Registrar of the suspension request and the expected 3 duration of the suspension.
4 (iii) The Parties reach a settlement and provide a standard settlement 5 form to the Provider further to the Provider's supplemental rules and 6 settlement form. The standard settlement form is not intended to be an 7 agreement itself, but only to summarize the essential terms of the 8 Parties' separate settlement agreement. The Provider shall not disclose 9 the completed standard settlement form to any third party.
10 (iv) The Provider shall confirm to the Registrar, copying the Parties, the 11 outcome of the settlement as it relates to actions that need to be taken 12 by the Registrar.
13 (v) Upon receiving notice from the Provider further to 17(a)(iv), the 14 Registrar shall remove the Lock within two (2) business days.
15 (vi) The Complainant shall confirm to the Provider that the settlement 16 as it relates to the domain name(s) has been implemented further to the 17 Provider's supplemental rules.
18 (vii) The Provider will dismiss the proceedings without prejudice unless 19 otherwise stipulated in the settlement.
20 (b) If, before the Panel's decision is made, it becomes unnecessary or impossible to 21 continue the administrative proceeding for any reason, the Panel shall terminate the 22 administrative proceeding, unless a Party raises justifiable grounds for objection 23 within a period of time to be determined by the Panel.
24 18.Effect of Court Proceedings 25 (a) In the event of any legal proceedings initiated prior to or during an 26 administrative proceeding in respect of a domain-name dispute that is the subject of 27 the complaint, the Panel shall have the discretion to decide whether to suspend or 28 terminate the administrative proceeding, or to proceed to a decision.
29 (b) In the event that a Party initiates any legal proceedings during the Pendency of 30 an administrative proceeding in respect of a domain-name dispute that is the subject 31 of the complaint, it shall promptly notify the Panel and the Provider. See Paragraph 32 8 above.
33 19.Fees 34 (a) The Complainant shall pay to the Provider an initial fixed fee, in accordance 1 with the Provider's Supplemental Rules, within the time and in the amount required. 2 A Respondent electing under Paragraph 5(b)(iv) to have the dispute decided by a 3 three-member Panel, rather than the single-member Panel elected by the 4 Complainant, shall pay the Provider one-half the fixed fee for a three-member 5 Panel. See Paragraph 5(c). In all other cases, the Complainant shall bear all of the 6 Provider's fees, except as prescribed under Paragraph 19(d). Upon appointment of 7 the Panel, the Provider shall refund the appropriate portion, if any, of the initial fee 8 to the Complainant, as specified in the Provider's Supplemental Rules.
9 (b) No action shall be taken by the Provider on a complaint until it has received 10 from Complainant the initial fee in accordance with Paragraph 19(a).
11 (c) If the Provider has not received the fee within ten (10) calendar days of 12 receiving the complaint, the complaint shall be deemed withdrawn and the 13 administrative proceeding terminated.
14 (d) In exceptional circumstances, for example in the event an in-person hearing is 15 held, the Provider shall request the Parties for the payment of additional fees, which 16 shall be established in agreement with the Parties and the Panel.
17 20.Exclusion of Liability 18 Except in the case of deliberate wrongdoing, neither the Provider nor a Panelist shall be liable 19 to a Party for any act or omission in connection with any administrative proceeding under these 20 Rules.
21 21.Amendments 22 The version of these Rules in effect at the time of the submission of the complaint to the 23 Provider shall apply to the administrative proceeding commenced thereby. These Rules may not 24 be amended without the express written approval of ICANN. 25 • 26 27