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Note: There's been a number of more recent revisions... with other unboubtedly yet to come. - Staff
The following revised policy (Revision 01) will be effective Nov 23,1995. The following summarizes the changes:
1. The policy name does not include the word "Resolution", as the
policy relates to Domain Name disputes, not the resolution of them.
2. The first two paragraphs clarify NSI's responsibility to include second level Internet domain names in the top level COM, ORG, GOV, EDU, and NET domains.
3. Paragraph 4 and 8 add IAB and ISOC to those organizations which are indemnified.
4. Paragraph 4 makes provisions for those governmental or non-profit educational entities which are not permitted by law or under its organizational documents to indemnify third parties.
5. Paragraph 5 and 6(c)(6) allow the parties to select an arbitration panel, and requires written evidence that the parties agree to be bound by the decision of the selected panel.
6. Paragraph 6(a) limits rights to require domain name removal as the result of breach of any of the obligations under the Policy.
7. Paragraph 6(b) clarifies that a trademark or service mark must be a federally registered mark.
8. Paragraph 6(c)(1) and 6(c)(2) recognize and make provisions for "first use" by either domain name holder or trademark owner.
9. Paragraph 6(c)(3) requires domain name holder to request assistance in the assignment of a new domain name.
10. Paragraph 6(c)(3) and 6(c)(4) extend the period to 30 days for a domain name holder to provide evidence they have a trademark which is identical to their domain name.
NSI DOMAIN NAME DISPUTE POLICY STATEMENT
(Revision 01, Effective November 23, 1995)
Network Solutions, Inc. ("NSI") is responsible for assigning second le vel Internet domain names in the top level COM, ORG, GOV, EDU and NET domains. This Policy Statement ("Policy Statement") will clarify NSI's policies regarding the use and registration of domain names ("Domain Name(s)").
1. NSI is responsible for the registration of second level Internet domain names in the top level COM, ORG, GOV, EDU, and NET domains. NSI registers these Domain Names on a "first come, first served" basis. NSI has neither the resources nor the legal obligation to screen requested Domain Names to determine if the use of a Domain Name by an Applicant may infringe up on the right(s) of a third party. Consequently, as an express condition and material inducement of the grant of an applicant's ("Applicant") request to register a Domain Name, Applicant represents and warrants as follows:
(a) Applicant's statements in the application are true and Applicant has the right to use the Domain Name as requested in the Application;
(b) Applicant has a bona fide intention to use the Domain Name on a regular basis on the Internet;
(c) The use or registration of the Domain Name by Applicant, to the best of Applicant's knowledge, does not interfere with or infringe the right of any third party in any jurisdiction with respect to trademark, service mark, tradename, company name or any other intellectual property right;
(d) Applicant is not seeking to use the Domain Name for any unlawful purpose, including, without limitation, tortious interference with contract or prospective business advantage, unfair competition, injuring the reputation of another, or for the purpose of confusing or misleading a person, whether natural or incorporated.
2. Applicant acknowledges and agrees that this Policy Statement on the registration and use of Domain Name may change from time to time and that, upon thirty (30) days posting of the Internet at ftp://rs.internic.net/policy/internic.domain.policy, NSI may modify or amend the terms of this Policy Statement.
3. At the time of the initial submission of the Domain Name request, the Applicant is required to have operational name service from at least two operational Internet servers for that domain name. Each server must be fully connected to the Internet and capable of receiving queries under that Domain Name and responding thereto. In the event that Applicant does not make regular use of its assigned Domain Name for any a period of 90 days or more, Applicant agrees that he or she shall, upon request of NSI, relinquish that Domain Name to NSI, making that Domain Name available for registration and use by another party.
4. Applicant is responsible for its selection of the Domain Name. Consequently, Applicant shall defend, indemnify and hold harmless (i) NSI, its officers, directors, employees and agents, (ii) National Science Foundation ("NSF"), its officers, directors, employees and agents, (iii) the Internet Assigned Numbers Authority ("IANA"), its officers, directors, employees and agents, (iv) the Internet Activities Board ("IAB"), its officers, directors, employees and agents, (v) the Internet Society ("ISOC"), its officers, directors, employees, and agents, and (vi) the officers, directors, employees and agents of NSI's parents and subsidiaries (collectively, the "Indemnified Parties") for any loss, damage, expense or liability resulting from any claim, action or demand arising out of or related to the use or registration of the Domain Name, including reasonable attorneys fees. Such claims shall include, without limitation, those based upon trademark or service mark infringement, tradename infringement, dilution, tortious interference with contract or prospective business advantage, unfair competition, defamation or injury to business reputation. The Indemnified Parties agree to give Applicant written notice of any such claim, action or demand within a reasonable time. Applicant agrees that the Indemnified Parties shall be defended by attorneys of their choice at Applicant's expense, and that Applicant shall advance the costs of such litigation, in a reasonable fashion, from time to time. The failure to abide by this provision shall be considered a material breach of this Agreement and permit NSI to immediately withdraw the use and registration of Domain Name from Applicant. NSI recognizes that certain educational and government entities may not be able to indemnify third parties. If the Applicant is (i) a governmental or non-profit educational entity, (ii) is requesting a Domain Name with a root of EDU or GOV and *iii) is not permitted by law or under its organizational documents to indemnify third parties, the Applicant should notify NSI in writing and, upon receiving appropriate proof of such restriction, NSI will provide an alternative registration agreement for such a Domain name.
5. Applicant agrees that NSI shall have the right to withdraw a Domain Name from use and registration on the Internet upon thirty (30) days prior written notice (or earlier if ordered by the court) should NSI receive a properly authenticated order by a United States court or arbitration panel chosen by the parties (if the order is from an arbitration panel, it should include written evidence that all parties which will be bound by the decision submitted the dispute for binding arbitration to such panel) that the Domain Name in dispute rightfully belongs to a third party.
6.(a) In the event that the Applicant breaches any of its obligations under this Policy Statement, NSI may request that Applicant relinquish the Domain Name in a written notice describing the alleged breach. If Applicant fails to provide evidence that it has not breached its obligations which is reasonably satisfactory to NSI within thirty (30) days of the date of receipt of such notice, then NSI may terminate Applicant's use and registration of the Domain Name. Breach of any of the warranties, representations, or obligations of an Applicant pursuant to this Policy shall not provide any third party a right to require or demand removal of a Domain Name or an Applicant from the NSI registry. Neither shall any such breach by an Applicant be deemed to have been excused simply be cause NSI did not act earlier in response to that, or any other, breach by the Applicant.
(b) Applicant acknowledges and agrees that NSI cannot act as an arbiter of disputes arising out of the registration and use of Domain Names. At the same time, Applicant acknowledges that NSI may be presented with evidence that a Domain Name registered by Applicant violates the rights of a third party. Such evidence includes, but is not limited to, evidence that the Domain Name is identical to a valid and subsisting foreign or United States federal registration of a trademark or service mark that is in full force and effect and owned by another person or entity. Trademark or service mark registrations from the individual states (such as California) of the United States are not sufficient. In those instances where the basis of the claim is other than a registered trademark or service mark, Applicant shall be allowed to continue using the contested Domain Name, unless and until a court order or arbitrator's judgment to the contrary is received by NSI as provided in paragraph 5.
(c) In those instances when the claim is based upon a trademark or
(1) Without prejudice to the ultimate determination and with recognition that trademark or service mark ownership does not automatically extend ownership to a Domain Name, NSI shall determine the date Applicant's Domain Name was first in use by Applicant (as determined by the activation date of the Domain Name). If the date of first use of the Domain Name by Applicant is not prior to the earlier of (i) the date of first use of a claimant's trademark or service mark, or (ii) the effective date of the valid and subsisting registration of the trademark or service mark owned by the claimant, NSI shall request from the Applicant proof of ownership of their own trademark or service mark by submission of a certified copy of a foreign or United States federal trademark or service mark registration (copies certified in accordance with 37 CFR 2.33(a)(1)(viii) or its successor will meet this standard for registrations in jurisdictions other than the United States) owned by the Applicant that is in full force and effect and that is the same as the Domain Name registered to Applicant.
(2) In the event that Applicant's Domain Name was in use by Applicant (as determined by the activation date of the Domain Name) prior to the earlier of (I) the date of first use of the trademark or service mark or (ii) the effective date of the valid and subsisting registration of the trademark or service mark owned by the claimant, or, if Applicant provides evidence of ownership of a trademark or service mark as provided in paragraph 6(b), Applicant shall be allowed, subject to Paragraph 6(c)(5), to continue using the contested Domain Name, unless and until a court order or arbitrator's judgment to the contrary is received by NSI as provided in Paragraph 5.
(3) In the event the Applicant fails to provide evidence of a trademark or service mark registration to NSI within thirty (30) days of NSI's request and is not eligible under Paragraph 6(c)(2) for non- suspension, NSI will assist Applicant with assignment of a new Domain Name, and will allow Applicant to maintain both names simultaneously for up to ninety (90) days to allow an orderly transition to the new Domain Name. NSI will provide such assistance to an Applicant if and only if Applicant submits an explicit written request for assistance, including an identification of the Applicant's desired new Domain Name, within the thirty (30) days of NSI's original request. At the end of the transition period, NSI will place the disputed Domain Name on "Hold" status, pending resolution of the dispute. As long as a Domain Name is on "Hold" status, that Domain Name registered to Applicant shall not be available for use by any party.
(4) If Applicant fails to provide evidence of a trademark or service mark registration to NSI within thirty (30) days and will neither accept the assign ment of a new Domain Name nor relinquish its use of the Domain Name, NSI will place the disputed Domain Name on "Hold" status, pending resolution of the dispute. As long as a Domain Name is on "Hold" stat us, that Domain Name registered to Applicant shall not be available for use by any party.
(5) If Applicant provides the evidence described in Paragraph 6(b) or is eligible under paragraph 6(c)(2), and wishes to continue use of the contested Domain Name registered by Applicant, Applicant agrees to indemnify NSI on the terms stated in paragraph 4 from any liability relating to the registration or use of the Domain Name registered by Applicant and post a bond in an amount sufficient to meet the damage sought, or if no specific amount of damages is sought, in an amount deemed reasonable in NSI's sole discretion within fourteen (14) days of NSI's request. Without such agreement and the posting of the bond, NSI may, notwithstanding any trademark or service mark registration presented to it or eligibility for non-suspension under Paragraph 6(c)(2), place the use of the Domain Name in "Hold" status pending resolution of the dispute.
(6) NSI will reinstate the use and registration of a Domain Name placed in "Hold" status when and if it receives a properly authenticated order by a United States court or arbitration panel chosen by the parties (if the order is from an arbitration panel, it should include written evidence that all parties which will be bound by the decision submitted the dispute for binding arbitration to such panel) stating which party to the dispute is entitled to use and register the Domain Name or if NSI receives satisfactory evidence of the resolution of the dispute.
7. NSI WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF NSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NSI'S MAXIMUM LIABILITY UNDER THE POLICY EXCEED FIVE HUNDRED ($500.00) DOLLARS.
8. Any dispute arising out of this Agreement or, at the request of NSI and upon the agreement of the challenging party, a dispute regarding the right to register or use Domain Name shall be resolved by binding arbitration by the American Arbitration Association under its commercial rules then in effect in San Diego, California (hereinafter "AAA"). A single arbitrator shall be selected according to AAA rules within thirty (30) days of submission of the dispute to AAA. The arbitrator shall conduct the arbitration in accordance with the California Evidence Code and shall apply the substantive laws of the State of California, without regard for California's choice of law rules. Except as expressly provided in the Agreement, no discovery of any kind shall be taken by either party without the written consent of the other party, provided, however, that either party may seek the arbitrator's permission to take any deposition which is necessary to preserve the testimony of a witness who either is, or may become, outside the subpoena power of the arbitrator or otherwise unavailable to testify at the arbitration. The arbitrator shall have the power to enter any award that could be entered by a Judge of the Superior Court of the State of California sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory against NSI, NSF, IAB, ISOC or IANA, their parents, subsidiaries, officers, directors, employees or agents even if permitted under the laws of the State of California or any other applicable law. Within twenty (20) days of the close of arbitration hearings, the arbitrator shall submit a written arbitration award to the parties, stating the basis for each decision made by the arbitrator and the amount of each arbitration award. The arbitrator shall award the prevailing party it s costs and its reasonable attorneys' fees, and the losing party shall bear the entire cost of the arbitration, including the arbitrator's fee. The arbitration award may be enforced in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, the parties irrevocably submit to the non-exclusive jurisdiction of the Superior Court of the State of California, San Diego County, and the United States District Court for the Southern District of California, in any action to enforce an arbitration award.
9. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, seven (7) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the Domain Administrative Contact listed in the InterNIC Registration Services' database or such other address as either party may specify in writing. This Policy Statement can only be amended by NSI as provided in paragraph 2. Nothing contained in this Policy Statement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. The parties agree to amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original economic objectives and contractual intent of NSI as reflected in the original provision. This Policy Statement, as amended, and the Registration Agreement together constitute the complete and exclusive agreement of the parties regarding Domain Names. It supersedes and its terms govern all prior proposals, agreements or other communications between the parties.
Please address correspondence related to the following policy to:
Network Solutions, Inc.
ATTN: David M. Graves
505 Huntmar Park Drive
Herndon, Virginia 22070
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