| Q. |
Why Is A Domain Dispute Resolution
Procedure Necessary? |
| A. |
In registering a domain
name, CIRA does not conduct any search or investigation to determine whether others may
have trademark or other rights in that name. More than one person may be entitled to the
registration of a particular domain name, or the registrant may have no right to the
domain name. A dispute resolution procedure is helpful to provide an arena for
complainants and registrants to argue their rights to avoid lengthy and expensive legal
battles in the resolution of certain types of domain name disputes. |
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| Q. |
What Is The ICANN Dispute Resolution Policy? |
| A. |
In 1999 ICANN (Internet Corporation for Assigned Names and
Numbers) adopted a Uniform domain name Dispute Resolution Policy (UDRP) for generic top
level domains, such as .com, .net and .org. This policy has also been adopted by a few
country code TLDs. The process involves a relatively quick and economical online mandatory
arbitration by a single arbitrator or a panel of an approved organization. To date, the
UDRP has been helpful to complainants in obtaining quick recourse in obvious cases of bad
faith registration and use. |
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| Q. |
What Procedure Will There Be For Resolving
Disputes In The .CA Registry? |
| A. |
Complainants and domain name registrants may use
consensual arbitration, mediation or any other process they may agree on to resolve
disputes between them pertaining to a domain name registered with CIRA. Where the
registrant does not consent to the use of a dispute resolution mechanism, a complainant
may bring the dispute to a court of competent jurisdiction or invoke CIRA's dispute
resolution policy. The proposed CIRA Dispute
Resolution Policy (CDRP) is modeled on the ICANN UDRP, but with modifications tailored to
Canadian laws and rights, as well as CIRA's Canadian Presence Requirements. The CDRP will
provide a forum where clear cases of bad faith registration of domain names can be dealt
with relatively inexpensively and expeditiously. In its current form, the CDRP applies to
cases of bad faith registration of the domain name. Bad faith use is not required, as it
is under ICANN, but this issue is one on which comment is explicitly invited in the public
consultation on the CDRP.
The CDRP will be carried out in accordance with CIRA CDRP
Rules (Procedural Rules). The Procedural Rules will probably also be modeled on the ICANN
UDRP Rules, although modified for the CIRA system. |
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| Q. |
What Is The Substantive Basis For The CDRP? |
| A. |
Under the CDRP, a registrant would be required to submit
to a proceeding in the event that a complainant asserts to a provider that:
- the registrant's .ca domain name is confusing with a
trade-mark, official mark or trade name in which the complainant has rights in Canada;
- the registrant has no rights in Canada or any other
legitimate interest in Canada in respect of the domain name; and
- the registrant was, at the date of registration, acting in
bad faith in registering (and perhaps using) the domain name.
|
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| Q. |
What Is Bad Faith? |
| A. |
The CDRP sets out a number of factors to be considered,
among others, in assessing whether a registrant has registered a domain name in bad faith.
Other mitigating factors favorable to the registrant are also enumerated to assist in
determining whether a domain name has been registered in bad faith. The specific list of
factors may be reviewed in the draft CDRP posted for consultation. |
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| Q. |
Who Can Commence A Proceeding? |
| A. |
It is currently proposed that any person or entity may
initiate a dispute resolution proceeding by submitting a complaint in accordance with the
CDRP and the Procedural Rules. However, the ability to file a complaint under the CDRP
might be limited to those who comply with CIRA's Canadian Presence Requirements for
registrants (CPR). This is a point on which comment is requested in the public
consultation. |
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| Q. |
How Is A Procedure Initiated? |
| A. |
A complainant wishing to have a dispute adjudicated under
the CDRP would submit a complaint to a dispute resolution service provider approved by
CIRA. The complainant must present evidence to establish all three elements set out in the
answer to question 56 above, namely that the registrant's domain name is confusing, the
registrant has no rights, and the registrant has acted in bad faith in registering the
domain name. The registrant would then be provided with an opportunity to respond and to
provide evidence supporting his or her right to the registration of the disputed domain
name. |
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| Q. |
Who Will Hear The Dispute? |
| A. |
It is currently expected that the provider will select a
panel to preside over the proceeding. The panel will be required to meet certain
qualifications and will be selected from among the list of qualified individuals. It will
probably be possible to select a panel of one or three panelists. |
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| Q. |
Who Pays? |
| A. |
It is currently expected that it would be up to the
complainant, when submitting a dispute, to submit a non-refundable fee. The amount of the
fee would be based on whether a single member or three-member panel is chosen. The cost
for a three-member panel would be greater than if a single panelist is chosen. If the
complainant opts for a single panelist and the registrant chooses a three-member panel,
the increased non-refundable cost would be paid by the registrant. |
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| Q. |
How Is The Proceeding Conducted? |
| A. |
It is currently expected that, after receiving the
complainant's submission, the provider will review the complaint for administrative
compliance with the CDRP and the Procedural Rules. If the complaint complies, the provider
would forward the complaint to the registrant for response within the prescribed time.
This would start the proceeding and the time period for the registrant's response. Unless
the panel determines otherwise, there will be no in-person hearings, as it is intended
that the vast majority of disputes will be resolved online based upon the material filed
by the parties. |
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| Q. |
How Long Will The Proceeding Take? |
| A. |
Once the complaint is submitted, it is currently expected
that the dispute would be resolved within a relatively short time period, and the decision
of the panel will be available within several weeks. The panel's decision will be in
writing and will contain the reasons on which it is based. The decision will be published
on CIRA's web site except in exceptional cases. |
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| Q. |
What Will The Decision Be Based On? |
| A. |
It is currently expected that the panel will decide
complaints on the basis of statements and documents submitted to it in accordance with the
CDRP, the Procedural Rules and principles of Canadian federal and provincial law it deems
applicable. |
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| Q. |
What Remedies Are Available Through The CDRP? |
| A. |
The remedies available to a complainant under the CDRP and
the Procedural Rules will be limited to:
- requiring the cancellation of the registrant's domain name
registration;
- transfer of the registration to the complainant, subject to
the complainant qualifying under the CPR for registrants
If any person may initiate a dispute resolution proceeding,
then a complainant who does not comply with the CPR will be entitled to request that the
registration be transferred to a nominee of the complainant. The nominee would have to
satisfy the CPR for registrants and enter into CIRA's registrant Agreement before the
transfer could be affected. |
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| Q. |
What If A Complainant Is In Bad Faith? |
| A. |
In reaching its decision based on the above requirements,
the Panel may make a finding that the complainant commenced the proceeding in bad faith in
an attempt, unfairly and without colour of right, to cancel or obtain a transfer of a
registration. Such a finding may have a negative impact on a complainant in a subsequent
proceeding. Comments are explicitly invited on this issue in the consultation document. |
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| Q. |
What Disputes Are Not Covered By The CDRP? |
| A. |
The CDRP would not cover disputes between parties who, in
good faith, have competing rights or claims to the domain name or its use or to
trade-marks, trade names or related rights. The CDRP would also not be intended to resolve
all issues in connection with the registration of a domain name, or those relating to
ownership, defamation and discrimination. |
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| Q. |
Are The Courts Still Available? |
| A. |
The availability of the CDRP would not prevent either a
registrant or a complainant from submitting a dispute between them to a court or arbitrage
panel of competent jurisdiction for independent resolution either before or after a
proceeding is concluded. Under the CDRP, the registrant must however submit to the CDRP
proceeding, if the complainant chooses that proceeding. |
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| Q. |
When Does The CDRP Procedure Come Into Effect?
|
| A. |
The draft CDRP was posted for public consultation and
comment on September 29, 2000, and may be revised based on input from the Internet
community. The Procedural Rules, which will govern the administration of the CDRP would
then be prepared and providers and panelists would then be engaged. It is anticipated that
the CDRP will come into effect in 2001. |
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