29 Rights Protection Mechanisms
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Also note that ICANN’s “Trademark Clearing House” policy is still subject to change, hence final descriptions of the registry services required to support that functionality are not possible.
As required by specification 7 of the new gTLD Agreement, the Registry Operator will implement and adhere to any rights protection mechanisms („RPMs“) that are mandated by ICANN.
Furthermore, Valuetainment will implement a “.VOTINGphased roll-out policy”, which will address the different availability phases (Sunrise and Landrush) of the new .VOTING gTLD. This policy will contain several mechanisms designed to protect third party rights.
All mandated and independently developed rights protection mechanisms will be included in the registry-registrar agreement for the TLD. The Registry Operator will implement all required RPMs described in the Trademark Clearinghouse function (once adopted by ICANN) and understands that ICANN may revise such requirements from time to time.
The Registry Operator will not mandate that owners of applicable intellectual property rights have to use any other trademark information aggregation, notification or validation service in addition to or instead of the ICANN-designated Trademark Clearing House.
The Registry Operator will comply with PDDRP, RRDRP (which is not applicable in the present case) and URS procedures, and will implement and adhere to the remedies ICANN imposes via those processes.
The Registry Operator will also take reasonable steps, as detailed in the answer to question 28, to investigate and respond to any reports from law enforcement, governmental and quasi-governmental agencies of illegal conduct under the .VOTINGgTLD, and understands that the Registry Operator will not be required to take any action that contradicts applicable law.
Details about the implementation of the various rights protection mechanisms are included below.
1.1 UDRP Support
It is understood that ICANN’s Uniform Dispute Resolution Process (UDRP) is largely concerned with registrars. Hence, the Registry Operator does not need to implement any specific process in order to support the UDRP specifically. However, the Registry Operator will support registrars in UDRP cases involving domain names under the TLD and will cooperate with approved Dispute Resolution Service Providers in order to assist in their work.
1.2 URS Support
The Registry Operator will comply with ICANN’s requirements regarding the Uniform Rapid Suspension (URS) process and understands that the following services are required (and will be provided) during the operation of the TLD:
• Contact information: the Registry Operator will provide email and other contact information to accredited URS-DPRs so that notices and other communication regarding URS cases can be communicated efficiently.
• Notice and locking of a domain: Upon receipt of a respective Notice from an accredited URS provider, the Registry Operator will “lock” the affected domain name within 24 hours by means of putting it into the LOCKED status. This means that modifications (including transfers) on the domain name and registration data will be rejected but the name will still resolve in the DNS. The Registry Operator will immediately notify the URS provider upon locking the domain.
• Remedies: In order for the URS-DRP to implement the Remedy, the Registry Operator will subsequently modify the registration (for example, by changing nameservers to the URS-DRP’s own hosts) or remove the LOCKED status on the domain or implement other such measures as instructed by the URS Provider.
• Extend Registration: the Registry Operator will support successful Complainants if they wish to extend the registration period for one year at commercial rates.
The Registry Operator wishes to note that authentication of URS providers is a critical issue since Notices and other instructions may be sent via email to the Registry Operator and email itself does not provide any means of authentication. Hence, additional measures such as cryptographically signing such emails will be deemed necessary in order to identify a Notice as authentic and subsequently authorize requests to the Registry Operator.
The Registry Operator agrees to participate in the procedures required by the Post-Delegation Dispute Resolution Procedure (PDDRP) and be bound to all determinations that are the result of said procedures. The process implemented by the Registry Operator for actual complaints will be as follows:
• Once a Complaint is received electronically or in paper notice form from the Provider, Registry Operator will verify the content requirements of the Complaint, according to section 7.2 of the current PDDRP specification (dated Sep 19 2011). The Complaint will be reviewed by the legal team at Schollmeyer&RickertRechtsanwaltsgesellschaftmbH.
• The Registry Operator will notify the Provider about the receipt of a complaint.
• If deemed necessary, the Registry Operator will submit papers within 10 days of receipt of the Complaint.
• Registry Operator will subsequently follow the process regarding implementation of the remedies, as described in the PDDRP specification.
The Registry Operator agrees to participate in the procedures required by the Registration Restriction Dispute Resolution Policy (RRDRP) and be bound to the determinations that are the result of said procedures, in accordance to Section 2a of Specification 7 of the New gTLD Agreement. The actual administrative steps for handling Complaints based on the RRDRP will be identical, process-wise, to the PDDRP process described above.
1.5 Trademark Claims (Clearinghouse)
It is understood that – according to the Trademark Clearing House definition dated Jan 12 2012 – ICANN is going to define a Trademark Clearinghouse provider who will in turn supply two primary functions (see Section 1.2 of the document), of which function (ii) (“serving as a database to provide information to new gTLDs”) will be directly relevant to the operation of this TLD.
It is also understood that ICANN’s work towards the establishment of such a Trademark Clearinghouse is still in progress. Therefore, it is not yet possible to describe the actual process and technical interfaces by which the Registry will support the Trademark Clearinghouse requirements.
The Registry Operator will, however, implement any reasonable measures and processes that are required by the Trademark Clearinghouse function.
1.6 Sunrise Services
During the Sunrise period, holders of marks that have been previously validated by the Trademark Clearinghouse (1.6 above) will receive notice of domain names that are an identical match (as defined in the ICANN Applicant Guidebook) to their mark(s). Such notice will be provided in accordance with ICANN’s requirements either by Valuetainmentdirectly or through a registrar.
Valuetainmentrequires all registrants, either directly or through registrars, to i) affirm that said registrants meet the Sunrise Eligibility Requirements (SER) and ii) submit to the Sunrise Dispute Resolution Policy (SDRP) consistent with Section 6 of the Trademark Clearinghouse model.
During the Sunrise period, Valuetainment and⁄or registrars, as applicable, are responsible for determining whether each domain name is eligible to be registered (including in accordance with the SERs).
1.7.1 Sunrise Eligibility Requirements
The SER will include the following:
A. The registrant meets, where applicable, the requirements of the .VOTING Eligibility Policy;
B1. The registrant is the owner of a word mark: (i) that is nationally or regionally registered for which proof of use – which can be a declaration and a single specimen of current use – was submitted to, and validated by, the Trademark Clearinghouse; or (ii) that has been court-validated; or (iii) that is specifically protected by a statute or treaty currently in effect and that was in effect on or before 26 June 2008; or
B2. The registrant is the owner, licensee or legal successor of a registered and existing trademark right (word mark and⁄or figurative mark), for which the claimed legal position on which the registration of the domain name is based was in effect on or before 26 June 2008 and the domain name is identical to the textual element of the mark (for which the parameters will be further defined);
C. The requirement of a representation that all provided information is true and correct;
D. The requirement that the provision of data sufficient to document rights in the trademark; and
E. The requirement that the application has been successfully validated by Valuetainment’s Validation Agent.
Applications submitted to Valuetainmentor through an accredited registrar during the Sunrise Period are validated for completeness and accuracy in accordance with the roll-out policy on behalf of Valuetainmentby a specialized Validation Agent, who will be tasked to
o validate trademarks against the Trademark Clearinghouse or against the respective database of the competent trademark office; and
o determine whether the trademark matches the string applied for according to the SER.
The Validation Agent can request supplementary records from the registrant at any time in the course of the validation process. Registrants are obliged to pay a fee for the application and for the respective validation. Rejected and⁄or unsuccessful applications will not be refunded.
Applications shall be rejected if,
o the application does not contain complete and accurate information as described in the Sunrise Policy, or is not in compliance with other provisions of the Sunrise Policy and⁄or other applicable .VOTING policies;
o the domain name applied for obviously violates existing law, court or official orders, and is accordingly likely to endanger the operations of .VOTING; or
o the Registrant fails to pay the validation fee and⁄or fails to deliver supplementary records as requested by the Validation Agent.
Domain names applied for shall be registered after the end of the Sunrise Period if,
• Valeutainmenthas received only one application for a given domain name which was successfully validated, this domain name will be registered to the Applicant, if it meets the other requirements of the Sunrise policy and the other applicable .VOTING policies; or
• an Applicant whose application has been validated was the highest bidder in an auction.
Should Valuetainmentreceive two or more valid applications for the same domain name, it will be offered to the applicants at auction. The highest bidder will be awarded the domain.
1.7.2 Sunrise Dispute Resolution Policy (SDRP)
After any Sunrise name is awarded to an applicant, it will remain under a “Sunrise Lock” status for at least 60 days so that parties will have an opportunity to file Sunrise Challenges. During this Sunrise Lock period the domain name will not resolve and cannot be modified, transferred, or deleted by the registrar. The domain name will be unlocked at the end of that lock period only if it is not the subject of a Sunrise Challenge.
The Sunrise Dispute Resolution Policy (SDRP) will allow Sunrise challenges based on the following four grounds:
(i) at time the challenged domain name was registered, the registrant did
not hold a trademark registration of national effect (or regional effect) or the
trademark had not been court-validated or protected by statute or treaty;
(ii) the domain name is not identical to the mark on which the registrant based its Sunrise registration;
(iii) the trademark registration on which the registrant based its Sunrise
registration is not of national effect (or regional effect) or the trademark had not
been court-validated or protected by statute or treaty; or
(iv) the trademark registration on which the domain name registrant based its Sunrise registration did not issue on or before the effective date of the Registry Agreement and was not applied for on or before ICANN announced the applications received.
1.7 Other Reports
As detailed in the answer to question 28, reports and requests from competent authorities, law enforcement and⁄or courts will receive top priority. These parties will receive priority contact options to ensure quick and proper reactions. Such requests will be handled and resolved by Valuetainment’s abuse team – the legal team at Schollmeyer&RickertRechtsanwaltsgesellschaftmbH- without delay, the latest within 24 hrs.
1.8 Contractual Measurements
The answer to Question 28 (“Abuse Prevention and Mitigation”) described Valuetainment’sdifferent contractual approaches to identify and address abusive usage of .VOTINGgTLDS. Valuetainmentwill establish upon the launch of the new .VOTINGgTLD the “.VOTINGEligibility Policy”, the “.VOTING Domain Name Policy” and the “.VOTING Abuse Reporting and Takedown Policy”.
These policies will all be part of the Registry-Registrar Agreement (RRA), which needs to be signed by all registrars interested in offering registrations under the .VOTINGgTLD giving Valuetainmentthe possibility to impose certain sanctions against Registrants directly should this be necessary. Those contractual rights, procedures and measurements are designed as following:
By applying for and registering .VOTINGdomain name(s) the registrant enters into a direct agreement with Valuetainment. Furthermore Valuetainmentshall be entitled (but not obliged) to reject an application or to delete, revoke, cancel or transfer a Domain Name Registration should the respective domain name infringe upon third party rights.
If Valuetainmentor any other party involved in the registration of the .VOTING domain name is directly contacted by a third party because of alleged violations of law, Valuetainment’s abuse team will notify the registrant by e-mail, either directly or through the respective registrar. The registrant will process and reply to all correspondence forwarded by Valuetainmentwithout delay, and at least within 48 hours, unless a third party has set a shorter period or there is other specific need for speed.
Should the registrant fail to reply within this time limit, Valuetainmentis entitled to stop the domain name from resolving via the DNS, have it deleted and⁄or to terminate the respective agreement.
In urgent cases, Valuetainmentis entitled to stop the domain name from resolving via the DNS, have it deleted and⁄or to terminate the respective agreement without prior notification or warning. This applies specifically to violations of criminal law and⁄or violations of youth protection law.
1.9 Dispute-related Technical Functionality in the Registry System
In order to handle any disputes concerning a domain in the “.VOTING” zone according to the RPMs defined, the Registry Administration Panel (a web-based interface to the SRS to query and manipulate registry data) includes functionality to manually put domains into the “LOCKED” status (see Answer to question 27 – Registration Lifecycle). The dispute related functions are based on more than 12 years of experience in managing disputes under the “.at” TLD and provide the following functionality:
• Search for domain names and display WHOIS as well as registrar data
• For each domain, the following tasks can be performed:
** Delete the domain immediately (domain immediately enters PENDINGDELETE state and thus cannot be restored by a registrar)
** Put the domain into the LOCKED state (which prevents modifications and transfers on the domain name, and also prohibits modifications on the associated registrant contact)
** Add the “serverHold” status to domain names under LOCKED(so that the name is excluded from the DNS, and hence technically disabled)
** Remove the “serverHold” status from a LOCKED domain
** Put domain names in LOCKED state back to their previous state (most commonly, REGISTERED).
** For each action, the system allows users to select one of several “reasons” to be recorded with the action.
** An additional free-form text box allows users to record additional information, such as pointers to external documents, or case numbers.
• List all domain names in LOCKEDstatus
• Display data, reasons, and additional information of domains in LOCKED state
• Display historical data about such cases
1.10 Resourcing Plan for Implementation and Ongoing Maintenance
Valuetainment staff will implement the measures described above with the support of subcontractors as described in the financial section.
Basic functionality regarding rights protections mechanisms (domain locking, tracking of requests) is already implemented in the registry core system, hence no further resources are needed for this initial implementation.
However, it is understood that resources are necessary to implement further measures that require technical interaction with the registry system, as soon as they are clearly defined (especially the trademark clearing house process and sunrise). The implementation effort cannot be foreseen at the time of writing,hence the concrete resourcing plan for the technical part of the implementation and ongoing maintenance cannot be provided. However, the Registry Operator is aware of the fact that during landrush and sunrise more resources will be allocated to handle the increased load on the day to day operations as well performing necessary changes on the system after completion of sunrise and landrush if instructed by ICANN rules to do so.
Still, the Registry Operator will implement any reasonable measures and processes that are required by ICANN in respect to rights protection and resources will be allocated accordingly to have the functionality available for the operation of the registry.
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