29 Rights Protection Mechanisms
|gTLD||Full Legal Name||E-mail suffix||Detail|
|.дети||The Foundation for Network Initiatives “The Smart Internet”||tcinet.ru||View|
The Applicant considers implementation of Rights Protection Mechanisms (RMP) in the applied-for TLD an essential means to mitigate abusive registration and use of domain names to minimize confusion among customers, damage to Internet users and problems for holders of intellectual property rights.
With the focus on creation a friendly Internet environment for children and teenagers, the Applicant aims at building reputation of the applied for gTLD as a secure and reliable TLD. Having registered domain names in the gTLD, holders of intellectual property rights will also enjoy additional opportunities to market their products and services for the target audience.
The Applicant shall take all necessary efforts to prevent illegitimate registrations and disputes on domain names in the applied-for TLD, and if they arise, to provide administrative mechanisms as a “low-cost” alternative to court proceedings or other mechanisms. Specifically, the Applicant shall do his best to ensure compliance with general principles of protection of intellectual property rights basing on applicable international standards and best practices.
To this end the Applicant sees its main tasks as follows:
(i) To develop domain name policies and procedures to prevent and mitigate any violation of legal rights and minimize potential causes for disputes between registrants and rightholders;
(ii) To complement traditional judicial procedures with relevant dispute resolution procedures so that disputes concerning domain names in the applied-for TLD could be settled efficiently and at a low cost.
The Applicant will focus on the following three aspects of practices and procedures of domain names registration which are paramount from the perspective of protection of intellectual property rightholders:
- Registration policy;
- Aggregation and verification of registrant information;
- Alternative mechanisms of resolution of dispute on domain name registrations.
The Applicant will implement the RPMs approved and subject to further approval by ICANN and adhere to them. The Applicant shall also take into consideration other recommendations by ICANN, World Intellectual Property Organization (WIPO) and the Association of European Trade Mark Owners (MARQUES) and apply the existing TLD Registries’ record of launching new TLDs and industry best practices.
In addition to such RPMs, the prospective Registry Operator may develop and implement additional mechanisms to discourage or prevent registration of domain names that violate or abuse a third party’s legal rights.
2. PRE-LAUNCH RPMS
In accordance with requirements established by ICANN (Specification 7 to the Registry Agreement), the prospective Registry Operator will implement each of the mandatory RPMs set forth in the Trademark Clearinghouse model, which may be revised by ICANN from time to time. The Registry Operator will not mandate that any owner of applicable intellectual property rights use any other trademark information aggregation, notification, or validation service in addition to, or instead of the ICANN-designated Trademark Clearinghouse.
To conduct Sunrise or Trademark Claims Services the Applicant shall use the database of Trademark Clearinghouse Service Provider determined by ICANN. The Applicant shall not violate but comply with limited charter of Trademark Clearinghouse Service Provider or any other document which will regulate the use of Trademark Clearinghouse database.
While providing Sunrise Service and Trademark Claims Service, and using respective Trademark Clearinghouse Service Provider’s services, the Applicant shall provide non-discriminating conditions to trademark holders not included into the Trademark Clearinghouse database. All trademark holders shall be granted equal rights. Inclusion in the Clearinghouse is not proof of any right, nor does it engender any legal rights. Failure to submit trademarks into the Clearinghouse should not be perceived of as lack of vigilance by trademark holders or a waiver of any rights, nor can any negative influence be drawn from such failure.
2.1. Sunrise Registration Services
The purpose of Sunrise Services is to give respective categories of rightholders an opportunity to register domain names in the applied-for TLD prior to launching registration for all potential registrants. The Sunrise contributes to prevention of abusive registrations and malicious use of domain names which misleads the Internet users (e.g. phishing), and protection of Intellectual properties rightsholders.
The Applicant shall develop and publish on its website Sunrise policies describing all conditions of domain names registration within the Sunrise period and Sunrise registration service provisions including Sunrise Eligibility Requirements (SERs) and Sunrise Dispute Resolution Policy (SDRP) prior the Sunrise process starts. The Applicant’s SERs shall comply with the requirements set forth in Trademark Clearinghouse model as well as with other policies and procedures developed by ICANN for new gTLD Sunrise processes. The Applicant shall incorporate Sunrise Dispute Resolution Policy (SDRP) in accordance with requirements stipulated in the Trademark Clearinghouse model. Under the SDRP, third parties can initiate challenge proceedings asserting that the domain name registration does not comply with the conditions of Sunrise policies. Sunrise policies will state that information provided by applicants seeking a sunrise registration must be true and accurate, and that the sunrise applicants must provide all data sufficient to document their respective rights. As Trademark Clearinghouse’s functioning has not been yet finalized and approved by ICANN, the Registry Operator adjusts available and approved by ICANN mechanisms to validate the Sunrise registrations.
The Sunrise Services will be provided within not less than 30 days. The Applicant may decide to extend this period. The Applicant assumes that Sunrise period shall consist of, at least, two phases:
Phase 1 - for owners or agents of registered trademarks;
Phase 2 - for owners of trade-names provided this trade name is the name of the existing mass media or Internet project that fully matches the mission and purpose of the applied-for TLD .ДЕТИ.
Within the Sunrise period the domain name registrations will be implemented for the term of 1 to 10 years, but not more than 10 years, at the same price as that of domain name registrations in Live period. Modifications, transfers or deletion of domain names will be prohibited for one year following Sunrise registration.
The potential registrants will submit their applications during the respective phases of the Sunrise period via ICANN-accredited registrars that have entered into the Registry-Registrar Agreement (RRA) with Registry Operator (hereinafter Registrars). All the Sunrise applications received will be treated equally. Following the Sunrise eligibility requirements for each Phase, the applications received will be subject to examination. Where there is only one application for a domain name, that domain name will be registered on that sole applicant’s name. Where there are two or more applications for the same second-level domain name the following procedures will be exercised:
Due notification will be sent to the respective applicants encouraging them to find consensus regarding rights to use the domain name. Where the agreement has not been reached, the competing applications will be sent to the auction. The prospective Registry Operator will choose an auction provider to organize and hold the auction. The domain name will be ultimately awarded to the candidate who was pronounced the winner of the auction. Detailed rules of auction procedure will be published on the Registry Operator’s website.
If within the Sunrise period a domain name similar to the one included in the Trademark Clearinghouse database is requested, the applicant and trademark holder(s) will be sent respective notices of Sunrise registration in accordance with the procedure and form defined by ICANN in Trademark Clearinghouse model.
If the Sunrise application check reveals that the requested domain name fails to comply with the Trademark Clearinghouse record or the domain name applicant is not the holder of asserted rights, due notification will be sent to the domain name applicant.
A domain name applicant shall confirm its possession of the respective rights necessary for sunrise registration and that information provided is true and accurate.
Upon their registration, second-level domain names may be challenged nonetheless. The respective procedure, known as the Sunrise Challenge Procedure, will be implemented either in line with a respective consensus policy to be adopted by ICANN, or, if ICANN fails to adopt such a policy and procedure, the Registry Operator will provide for the following reasons to challenge a domain name registration:
- at the moment of registration of the domain name by its registrant there has been no valid trade- or service mark registered on him; or
- the registered domain name appears different, whether textual- or element-wise, from the given trademark or service mark registration elements, as prescribed by the Sunrise policies; or
- the trade- or service mark registration which has served as a basis of registration of the domain name by its registrant appears not of national effect; or
- the trade- or service mark has been recognized null and void, canceled or otherwise abandoned; or
- the trade- or service mark registration which has served as a basis of registration of the domain name by its registrant was not granted to the registrant before the cut-off deadline set by the Trademark Clearinghouse.
The procedure will provide for the party, which has acquired the domain name during the Sunrise registration, the right to be informed of the challenge and have a chance to build a substantiated defense with regard to the case, which should be brought for consideration of a neutral dispute resolution party.
2.2. Trademark Claims service
The Registry Operator will implement the Trademark Claims Service (hereinafter referred to as TCS) in full conformity with to-be-developed terms of access to the Trademark Clearinghouse. TCS will be provided for at least the first 60 days post-launch. Besides, the Registry Operator may provide TCS through the whole period during which the Trademark Clearinghouse service remain accessible and available.
A second-level domain shall be examined against the Trademark Clearinghouse’s database to make sure it does not have an identical match in the said database. Where such a match has been found, the prospective registrant will be issued an alert communication thereof, with a Trademark Claims Notice containing information about the potentially disputed trademark, its claimant and reference data that indicate the respective entry in the Trademark Clearinghouse database. Before the continuation of registration of the selected second-level domain name, its potential registrant will be required to attest that:
(i) he⁄she has been alerted that the selected domain name is a match to the trade- or service mark contained in the Trademark Clearinghouse database;
(ii) he⁄she has received and understood the said alert;
(iii) if registered and in use, the said domain name will not affect the rights of a respective trade- or service mark rights holder.
Should the potential registrant be willing to continue with registration of the said domain name, due notification will be send to the mark holder(s) as per the Trademark Clearinghouse database.
2.3. Other services
The Applicant will implement a special tool which will allow any party concerned to check whether the applications for the particular domain name has been submitted during Sunrise period. It will be designed as WHOIS-like web-based interface service, but will be available prior to open registration of the domain name. Whether the Sunrise application for the requested domain name has been submitted, the service will provide information about trademark name, trademark registration date, trademark registration country, trademark registration number or Trademark Clearinghouse Claim Identification, sponsoring registrar, potential registrant’s name and contact data.
3. POST-LAUNCH RMPS
3.1. RMP in Registration Policy
The Applicant will develop the Domain Name Registration Policy that will define rights and obligations of registrants of second level domain names in the applied-for TLD. The Registry Operator will require Registrars to incorporate these rights and obligations in their registration agreement (agreement between Registrar and registrant).
The Registration Policy will include, inter alia, terms and conditions to prevent potential conflicts which may arise between the domain name registrant and any third party. The terms of second level domain name registration will be a key element to minimize abusive registration and use which could affect not just the interests of Internet users and intellectual property right holders, but the reputation and credibility of the gTLD as well. These restrictions will allow excluding violations (at least decrease their level), and will help deter infringers. The terms and conditions will include:
(i) Domain name shall comply with the purpose, philosophy and mission of the applied-for TLD;
(ii) Registrant shall submit a written commitment and warrants of usage of the domain name in compliance with the purpose, philosophy and mission of the applied-for TLD.
Moreover, to prevent abusive behavior, such as pharming the domain name, Applicant will implement DNSSEC technology and encourage registrants and Registrars to use this service.
To ensure compliance with the Domain Name Registration Policy and to mitigate its violations, the Applicant will develop Anti-Abuse policy and publish on its website the single abuse point of contact. Hence all interested parties will be able to submit thereto their claims on suspicious domain names registration and use in case of identification of abusive registrations and other activities that have a negative impact on Internet users such as phishing or pharming. In case of complaint of violation of intellectual property rights, the Anti-Abuse Team will notify the Registrar and registrant concerned for further consideration. For more details, refer to the answer to Evaluation Question #28.
3.2. Uniform Domain-Name Dispute-Resolution Policy (UDRP)
In accordance with the RAA, all ICANN–accredited registrars are bound to comply with UDRP and include respective requirements into their registration agreements. The Registry Operator will require all the Registrars entered into Registry- Registrar Agreement in the TLD to duly incorporate UDRP into the terms of second level domain names registration, as well.
The UDRP does not require the Registry Operator to be involved in the procedure. However, where it has become known to the Registry Operator that a Registrar has failed to comply with terms and conditions of RAA with regard to UDRP, while no legal action has been undertaken, for instance, in accordance with paragraph 4(k) (Availability of Court Proceedings) of UDRP, the Registry Operator has the right to take reasonable steps to discontinue the non-compliance and seek the opportunity to penalize the Registrar that violated the procedure in accordance with its sanctions as per the answer to Evaluation Question #28.
The Registry Operator will take possible actions on any notifications⁄requests sent by ICANN personnel indicating Registrar’s non-compliance with ICANN policies and requirements.
3.3. Uniform Rapid Suspension (URS)
The Registry Operator will receive respective URS notifications, promptly respond to them and ensure its contribution to suspension of second level domain names, as per the ICANN policy. The Registry Operator will require all the Registrars to duly incorporate URS into the terms of second level domain names registration agreements, as per RAA.
Where it has become known to the Registry Operator that a Registrar has failed to comply with terms and conditions of URS, while no legal action has been undertaken, the Registry Operator will re-assign the domain name concerned to a compliant Registrar with whom the claimant has established an account and seek the opportunity to penalize the Registrar that violated the procedure in accordance with its sanctions as described in the answer to Evaluation Question #28.
While enforcing compliance, the Registry Operator will consistently follow the practice of ensuring a high-quality, reasonably-priced and competent URS evaluation and remedying by outsourcing this mission to an outside URS service provider.
The Registry Operator will take possible actions on any notifications⁄requests sent by ICANN personnel indicating Registrar’s non-compliance with ICANN policies and requirements.
3.4. Post Delegation Dispute Resolution Policy (PDDRP)
The Applicant will observe and implement the Trademark Post-Delegation Dispute Resolution Procedure (PDDRP) adopted by ICANN. The Applicant agrees to implement and adhere to any remedies ICANN imposes following determination by any PDDRP panel and to be guided by any such determination.
3.5. Trade or Service Mark Disputes
Where a second-level domain name has become subject to a dispute and such a dispute is brought for settlement before and by the court of law, and the Registry Operator has been made a party to the trial, the Registry Operator will continue being eligible for producing any and all claims and defenses at its possession. The Registry Operator will employ all legitimate and reasonable means and methods not to become involved in the trial as a party where the dispute over the purportedly infringed or infringing second-level domain name is recognized as being subject to the contest between the claimant and the registrant.
The Registry Operator shall honor, in good faith and in an expedited manner, verdicts, orders, exigencies, notices with regard to the disputed second-level domain names by the courts of respective instances where such courts exercise their powers and rule by law of the Russian Federation. Where a dispute over a domain name is considered by a court of law of a jurisdiction other than the Registry Operator’s, the Registry Operator will seek a qualified legal counseling with regard to the trial on the issue and shall satisfy a judgment on the disputed domain name, including but not limited to, submission of a certificate of control, where the trial takes places in the USA and under the United States Anti-Cybersquatting Protection Act or legal acts successive to it, which may stand as a reason for the court to rule that the domain name shall be alienated. The Registry Operator will comply with such verdicts to the extent it is not made a party to the trial, nor an object of the verdict. With the exception of the above, the Registry Operator will use its legal right to defend itself in the court or to resolve a potential dispute by any other legal means per law of the Russian Federation.
Where, as stipulated in UDRP or URS, the trial arises in the Mutual Jurisdiction, the Registry Operator shall lock the disputed second level domain name and ensure it remains locked through the whole period of trial and until the Registry Operator is in receipt of a verdict on the case from the court of law.
In all other instances, where a lawsuit has been brought to the court of law with respect to a second-level domain name in the TLD operated by the Registry Operator and the court of law duly notifies the Registry Operator thereof, the disputed domain name shall be locked by the Registry Operator through the whole period of litigation in courts of all instances whose jurisdiction extends to the registrant of the disputed domain name, or its Registrar, or the Registry Operator’s jurisdiction, or, where the trial takes place in the USA, upon the Registry Operator’s legal counselor in the USA.
3.6. Illicit Violation Issues
Where the Registry Operator is named a defendant in a trial on criminal infringement matters, the Registry Operator will honor, in good faith and in an expedited manner, verdicts, orders, exigencies, notices by the court of law in the Russian Federation as the Registry Operator’s jurisdiction. Where a lawsuit on criminal infringement has been brought against the Registry Operator in the USA, the Registry Operator will authorize its legal counselor to act on its behalf to ensure a full compliance with the court’s directive, but will retain all legal means and methods to defend itself in the trial.
3.7. Similarity Watch Service
The Registry Operator will operate watch service available for legitimate subscribers thereto. The service will provide an indispensable tool to receive periodical update notifications of new domain registrations containing a certain combination of characters which may raise the subscriber’s concern. In other words, any right holder will be able to monitor words and their combinations which, if registered, can infringe upon his⁄her legal rights. The service is for information purposes only. The service’s notifications do not alert that domain name containing certain combination of characters selected by the subscriber is or is not infringing on any legal right.
That said, where need be, the Registry Operator will be keen to design and implement, within limits of its competence and where the situation requires so, any additional reasonable methods and tools to ensure the right holders’ interests are protected in the course of preparation and launch of registration of second level domain names.
3.8. Additional RPM Tools
(i) Zone File Access
According to the Zone File Access Agreement (Specification 4 to the Registry Agreement), the Registry Operator will grant third parties, such as commercial registration watch services providers, access to the zone file to have the intellectual property enforcement community enjoy the respective service and duly protect the holders’ rights.
(ii) WHOIS Extended Search
The Registry Operator will be at pains to deploy an efficient WHOIS search service as an extra instrument providing information about domain names and registrants in accordance with Specification 4 to the Registry Agreement (for details refer to the answer to Evaluation Question #26). This information may be helpful while an investigation with the aim to identify whether a registrant is involved in cybersquatting activities is conducted.
(iii) WHOIS Integrity
The Registry Operator will put WHOIS database to regular checks for its integrity and will ensure Registrars’ prompt respond to alerts received from the WHOIS Data Problem Report System. Where it has become known to the Registry Operator that the Registrar has failed to adequately respond to such or a third party’s alerts, the Registry Operator will immediately open an investigation into the case, which may result in suspension or cancellation of the domain name registration and sanctions against the Registrar (for details, see the answer to Evaluation Question #28).
(iv) Abuse Point of Contact
With reference to the answer to Evaluation Question #28 infringement of intellectual property rights or other rights will be enumerated as abuse complaints with respective case opening in the Trouble Ticket Management System and processes, with due notifications being channeled to the relevant Registrar and the registrant per the WHOIS database. The abuse complaint form will comprise references to mechanisms of enforcement of the above rights, including UDRP, URS and WHOIS Data Problem Reporting System.
4. RESOURCING PLANS. PERSONNEL
The Applicant has identified specific functions and tasks related to RPM processes and has assigned personnel to ensure their fulfillment:
(i) Legal work. The Applicant will engage the lawyer with a proven and extensive record of legal counseling and representation on matters pertaining to the Internet, to act both as a counselor and analyst to deal with legal challenges that may arise with respect to a court or a law-enforcement’s agency action or ruling which require their attention.
The key tasks will include:
- development of RPM – related policies and procedures;
- ongoing analysis of best practices with regard to RPM and recommendations on improvements and new mechanisms.
(ii) Customer Service Group will provide counseling to Registrars (including prospective ones) regarding the RPM procedures and mechanisms.
(iii) The Anti-Abuse Team will receive and process abuse complaints, as described in the answer to Evaluation Question #28.
This answer demonstrates technical and operational preparedness to address the problem of unqualified registrations and protection of third party’s rights. The Applicant will implement both the Sunrise service and the Trademark Claims service. The Applicant has necessary capacity and means to implement URS, UDRP and other dispute-resolution mechanisms as well as has designed the set of legally binding instruments to ensure Registrars’ compliance and, in so doing, built an effective system of indirect control over registrants’ compliance, too. The above means, actions and instruments have been incorporated into technical, technological, organizational and operational procedures and policies in the applied-for TLD. The mechanisms of rightholders’ protection are embodied into operational procedures and legally binding documents with third parties. The applied-for gTLD offers registrants efficient mechanisms to check for potentially unqualified registrations. The procedures, mechanisms and instruments employed to buffer rights holders from infringement appear coherent and comprehensive enough to exceed the bounds of the requirements set forth for the Applicant for the new gTLD.
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