29 Rights Protection Mechanisms

Prototypical answer:

1 Synopsis

This chapter provides details on the Rights Protection Mechanisms as pro-
posed for the dotJoburg gTLD including the sunrise and landrush policy
implementation in accordance with the ICANN Uniform Domain Name Dis-
pute Resolution Policy (UDRP), Uniform Rapid Suspension (URS) system,
and Trademark Claims and Sunrise services at startup.


2 Launch Process Outline

The ZA Central Registry intends to offer the following launch model.

* Pre-Sunrise: Allowing names to be reserved for a period of 24 months
or to be blocked.

* Sunrise 1: (favouring trademarks registered inSouth Africa; those
trademarks registered or applied for 18 months prior to delegation
will be granted an additional level of priority)

* Sunrise 2: Favouring all trademarks

* Introductory Land Rush: seeking to allocate premium names in sepa-
rate sub-phases, during which the prices of these names will decrease
in steps.

* Initiation Land Rush: Seeking to allocate names not previously iden-
tified as premium at an increased price compared to open delegation.

* Limited Availability Operational Period: Placing newly requested names
on a reserved list for a short period before allocation to guard against
unfair allocation of domain names where multiple applications for the
same domain name following release of domains or following an an-
nouncement or event. Conflicted names will be referred to auction.

* General Availability Operational Period: Steady state pricing; first-
come-first-served allocation.


3 Sunrise:

The Sunrise process is separated into three phases:

* Pre-Sunrise provides the opportunity to place names on the reserved
or blocked lists. Names will be placed on the Reserved list if they hold
special meaning in South Africa (such as city names, names of cultural
sites or groups, etc). Names will be blocked if the names are offensive in
the South African region. The South African Domain Name Authority
(ZADNA) in partnership with the South African Governments will
administer Pre-Sunrise.

* Sunrise 1 provides priority for eligible owners of trademarks registered
in South Africa to obtain domains corresponding to the trademarks
they own that are related to the policy of the Registry.

* Sunrise 2 allows eligible trademark owners to obtain domains corre-
sponding to the trademarks they own.

There is no priority during the respective Sunrise Periods. A batching sys-
tem is used for identical competing applications, which are then allocated
by auction.
The ZA Central Registry will publish full details of its Sunrise policy and eli-
gibility once it has been approved by the Policy Oversight Committee. What
follows is a basic outline of the proposed policy with some key definitions.
To be eligible to submit a REGISTRATION REQUEST under Sunrise 1, a
Sunrise APPLICANT must:

1. comply with the SUNRISE ELIGIBILITY REQUIREMENTS; and

2. be related to the POLICY of the REGISTRY; and

3. AFFIRM COMPLIANCE with the POLICY of the REGISTRY.

To be eligible to submit a REGISTRATION REQUEST under Sunrise 2, a
Sunrise APPLICANT must:

1. comply with the SUNRISE ELIGIBILITY REQUIREMENTS; and

2. AFFIRM COMPLIANCE with the POLICY of the REGISTRY.


3.1 Sunrise Definitions:

The policy will in all likelihood be based inter alia upon the following key
definitions.

ELIGIBLE: A trademark or service mark conforming to the SUNRISE
ELIGIBILITY REQUIREMENTS (SERs).

OWNERSHIP: Ownership of an ELIGIBLE trademark may mean owner,
co-owner or assignee. For an assignee, the PROVIDER may request
appropriate evidence that the assignment has taken place, and meets
the legal requirements to be an effective assignment in the jurisdiction
in which the mark is registered. For a co-owner, the PROVIDER may
request appropriate evidence that the co-owners have joined in the
application. Any dispute will be decided upon by the PROVIDER.

PROVIDER: An independent entity or entities appointed by the Reg-
istry to provide certain rights protection services which may include
inter alia verification, validation, and dispute resolution related to el-
igibility of trademarks. In this regard the ZA Central Registry has
provisionally elected to engage the South African Institute of Intel-
lectual Property Law (www.SAIIPL.org.za) for assistance and advice
concerning the establishment of a specialist panel of experts.

REGISTRATION REQUEST: An application submitted by an AC-
CREDITED REGISTRAR on behalf of an APPLICANT to register
a name in the TLD.


3.2 Sunrise Dispute Resolution Policy

The REGISTRY will operate a Sunrise Dispute Resolution Policy either it-
self or via the PROVIDER, full details and the fees of which will be published
on the REGISTRY WEBSITE.
The policy will allow challenges based on the following grounds:

* at the time the challenged domain name was registered, the domain
name REGISTRANT did not hold an ELIGIBLE trademark;

* the trademark registration on which the domain name REGISTRANT
based its Sunrise registration is not ELIGIBLE;

* the domain name is not identical to the trademark on which the do-
main name REGISTRANT based its Sunrise registration; and

* the REGISTRATION REQUEST which led to the award of the do-
main name was in some way incorrect, misleading or fraudulent.


3.3 Sunrise Eligibility Requirements (SERs)

1. These are cumulative.

* OWNERSHIP of a word mark registered in the Trademark Clear-
inghouse; or

* OWNERSHIP of a word mark of national or regional or interna-
tional effect registered in one of the states or entities in the WIPO
Standard ST.3, that is in full force and effect at the time of sub-
mission of the REGISTRATION REQUEST, and at the time of
Registration of any awarded name, and for which acceptable ev-
idence of USE in the class for which it is registered is provided;
or
* OWNERSHIP of a word mark that has been court-validated; or
* OWNERSHIP of a word mark that is specifically protected by
a statute or treaty currently in effect. Trademarks that were in
effect on or before a date 18 months prior to delegation will be
given priority in Sunrise 1;
2. a word mark which directly corresponds to the name in the REGIS-
TRATION REQUEST;
3. a statutory declaration or an affidavit signed by the APPLICANT:
* that the information provided is true, correct and complete;
* that no pertinent information has been withheld;
* that acknowledges the fact that if there is any information with-
held, that it automatically results in the loss of rights in any do-
main name(s) acquired, or the loss of the right to seek to register
same; and
* that the application is compliant with the relevant Sunrise re-
quirements;
4. provision of data conforming to the SUNRISE INFORMATION RE-
QUIREMENTS sufficient to document rights in the trademark;
5. is not a word mark that includes the STRING as a portion of the
trademark;
6. is not a trademark for which an application for registration has been
filed, but is not actually registered;
7. is not a trademark for which an application has lapsed, been with-
drawn, revoked, or cancelled;
8. is not an unregistered trademark including such common law marks;
9. is not a U.S. state trademark or service mark or a U.S. supplemental
registration;
10. is not an international application for the registration of trademarks,
made through the Madrid system, unless based on or have resulted in
a registered trademark of national effect;

11. is not intellectual property other than a word mark such as rights in a
sign or name, including domain names, trade names, and appellations
of origin.

12. is not a trademark registration that came into full effect after the
effective date of the Registry Agreement;

13. is not a trademark registration that was applied for after the 1 May
2012 being the date at which ICANN announced the applications re-
ceived.

One key objective of the SERs is to facilitate marks registered and used in
good faith and not merely as a means to register a domain name.


3.4 Sunrise Information Requirements

APPLICANTS in Sunrise 1 and Sunrise 2 must submit the following in-
formation, either in an ACCEPTABLE ELECTRONIC FORMAT, as pre-
scribed by the ZA Central Registry, or via a link to the relevant database
of the trademark registry, as part of a REGISTRATION REQUEST:

* EITHER OF: the Trademark name and its corresponding Trademark
Clearing House identity number; or

* Two (2) all of the following:

- the trademark corresponding to the name to be Registered;
- the country, region, or organization found in WIPO STANDARD
ST.3 in which the trademark is registered;
- the current registration number of the trademark;
- the date on which the trademark application was submitted;
- the date on which the trademark was registered;
- the class or classes under the latest publication of the Nice system
(or its equivalent) for with the trademark is registered (see: ; and
- the status of the APPLICANT being one of owner, co-owner, or
assignee of the trademark.

USE: Acceptable evidence of use will be a signed declaration and a sin-
gle specimen of current use, which might consist of labels, tags, containers,
advertising, brochures, screen shots, or something else that evidences cur-
rent use in the relevant jurisdiction, provided in an ACCEPTABLE ELEC-
TRONIC FORMAT.

The form of the signed declaration will be as follows. I⁄We [name of appli-
cant] declare that I⁄we have used the trademark [name of work mark] since
[date] in [country] on [state goods or services] and attach a sample of [type
of sample] as evidence.


4 Land Rush:

Land Rush is a period designed to allocate domain names (by price) that
may be regarded by the market as desirable (premium names). The Land
Rush Period is divided into sub phases and will be administered through
the Applicants Registrar Web Portal.
The first phase is the Introductory Land Rush period. All Domain Names
not taken up during the Sunrise Periods are made available for purchase
for a certain period at a certain price. Where there is more than one party
interested in the same domain name, that domain name will be auctioned.
Only parties that indicated that they were willing to pay the price for the
domain name during that period (by submitting an application for the name
in the prescribed manner) will be entitled to bid in the subsequent auction.
During the Introductory Land Rush period the price of domain names will
start at ZAR 10000, and will fall by ZAR 2000 at the beginning of each
subsequent period (such as a week) until it reaches ZAR 2000. Bids will be
collated at the end of each of these periods and undisputed applications will
be allocated, whilst disputed application (more than 1 (one) application for
the same name) will be referred to auction.
Then starts the Initiation Land Rush period. This period will last for an
estimated 14 days. It will also be administered through the Registrar Web
Portal. A minimum cost of ZAR 300 will apply to registrations during this
period. Multiple applications for the same domain name during this period
will also be resolved using an auction process. Undisputed applications will
be allocated at the end of the period.
To be eligible for Land Rush an applicant must AFFIRM COMPLIANCE
with the POLICY of the REGISTRY. An applicant may submit one or more
REGISTRATION REQUESTS during Land Rush for any available name.


5 Operational Phase: Limited Availability:

Depending on the decision made by the dotJoburg Policy Oversight Commit-
tee , the ZA Central Registry may elect to implement a limited availability
operational phase, following on from the Initiation Land Rush period. This

phase could last between 0 and 14 days, and will be administered through
the Applicants SRS EPP system.
The procedure will be to place any requested domain name (application)
in a reserved queue for a short period. If any additional applications for
the same domain name are received during this period then the domain will
enter a Land Rush auction for a maximum predetermined period. At the
end of the period the bids will be collected and the winner determined.
This process is intended to mitigate the effects of multiple applications for
the same name following domain release as well as spontaneous applications
due to international events or announcements.


6 Operational Phase: General Availability:

General Availability starts at the close of the limited availability operational
phase. Domain names are available at fixed prices (via Registrars) on a first-
come first-served model.


7 Trademark Clearing House:

During Sunrise 1 and Sunrise 2, all applications will be compared to the
Trademark Clearinghouse database, and the applicant will be informed if
there is any trademark in that database that is an identical match to the
domain name applied for.
The notice will be sent in English, and the applicant will be required to:

1. Acknowledge receipt of the notice;

2. Confirm that it understands the notice; and

3. Confirm that, to the best of its knowledge and belief, use of the domain
name applied for will not infringe the rights of the trademark cited.

During Sunrise 1, Sunrise 2 and Introductory Land Rush, all applications
will be compared to the Trademark Clearinghouse database and, if the do-
main name is identical to any trademark recorded in this database, the owner
of that trademark shall be given notice of the domain name application in
good time for him to also make application for the domain name.

8 Rights Protection Mechanisms (RPMs):

All RPMs prescribed by ICANN will be implemented.
In particular, the Uniform Rapid Suspension System (URS) shall be avail-
able. Examiners accredited by ICANN appointed Dispute Resolution Ser-
vice Providers (according to the Applicant Guidebook Module 3, paragraph
3.2.3) will be requested to make findings in URS applications.
In the case of where a Post Delegation Dispute Resolution Procedure (PDDRP)
is initiated following allegations that the Registry profited from a bad faith
registration, the Registry undertakes to participate in the procedure and be
bound by the determination made. This will be specifically included in the
agreement with prospective applicants for domain names in this TLD.
Providers accredited by ICANN as Dispute Resolution Service Providers
(according to the Applicant Guidebook Module 3, paragraph 3.2.3) will be
requested to stand as Providers in PDDRP applications.
Provision will be made to file initial complaints that the Registry has not
complied with registry restrictions through a Whois Data Problem Report
System (WDPRS) through InterNIC.net at a nominal, non-refundable fee.
If a complainant is not satisfied that the Registry has complied with its
requirements, the matter may be escalated using the RRDRP.
In the case of Registry Restrictions Dispute Resolutions Procedures (RRDRP),
the Registry undertakes to participate in the procedure and be bound by
the determination made. This will be specifically included in the agreement
with prospective applicants for domain names in this TLD.
Providers accredited by ICANN as Dispute Resolution Service Providers
(according to the Applicant Guidebook Module 3, paragraph 3.2.3) will be
requested to stand as Providers in RRDRP applications.
The Registry will endeavour to encourage and support suitably qualified
persons in South Africa to apply to be appointed to the board of Examiners
in the present ICANN Dispute Resolution Bodies.


9 Resources:

Supporting RPMs requires several departments within the registry operator
to work together. The implementation of Sunrise and the Trademark Claims
service and on-going RPM activities will pull from the members of the en-
gineering, product management, development, security and policy teams at
the registry. No additional hardware or software resources are required to
support this as the Applicant has fully operational capabilities to manage
abuse today.

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