a) Scope and purpose The ICANN gTLD Applicant Guidebook sets out a requirement for all new gTLD registries to provide a Sunrise Dispute Resolution Policy (Module 5, Trademark Clearinghouse, paragraph 6). In addition, Identity Digital Inc. (“Identity Digital”) provides a dispute resolution mechanism for its Domains Protected Marks List service (“DPML”). This Sunrise and DPML Dispute Resolution Policy (the “Policy”) governs disputes arising out of or concerning the Sunrise service and DMPL offered by Identity Digital. Additional information regarding Sunrise and DPML is available on the Identity Digital Website. b) Definitions In this Policy, the following words and phrases have the following meanings:
Complainant: A person (legal or natural) who makes a complaint under this Policy.
Identity Digital Website: identity.digital
Identical Match: The domain name label is an identical match to the trademark, meaning that the label consists of the complete and identical textual elements of the mark in accordance with section 4.2.1 of the TMCH Guidelines. In this regard:
Panellist: The person or organisation appointed by the Provider to provide a written decision in relation to a dispute arising under this Policy.
Provider: The dispute resolution provider appointed by Identity Digital to administer resolution of disputes arising under this Policy.
Provider’s Website: https://oxil.uk/dispute-resolution/donuts-sunrise/
Respondent: The applicant or registrant of the domain name(s), or the DPML account holder subject to a complaint under this Policy.
SMD File: A signed mark data file issued by the TMCH signifying that the TMCH has verified that the trademark contained in the SMD File meets the requirements for inclusion in the TMCH in accordance with TMCH Guidelines in force at the time when a complaint under this Policy is filed.
Sunrise: That period of time during which holders of SMD Files may submit domain name applications for a TLD before registration becomes available to the general public
TMCH: Trademark Clearinghouse (http://www.trademark-‐clearinghouse.com).
TMCH Guidelines: Guidelines published by the TMCH for mark holders and agents to inform them about the eligibility requirements for inclusion of marks in the TMCH and participation in sunrise services (currently available at http://www.trademark- clearinghouse.com/sites/default/files/files/downloads/TMCH%20guideli nes%20v1.1_0.pdf).
c) End-‐Date Sunrise Identity Digital utilizes an end-‐date Sunrise process, meaning Sunrise registrations will not occur during Sunrise. Rather, at the end of Sunrise, sole applicants meeting all Sunrise criteria for an available domain will be awarded their applied-‐for domain. Other than the requirement to submit a valid SMD File with Sunrise applications, Identity Digital does not apply allocation criteria in its Sunrise application process. If there are multiple applicants for an available domain, those applicants will go to auction at the end of Sunrise after which the auction winner will be allocated the domain. Additional information regarding Sunrise and the auction process is available on the Identity Digital Website. d) Trademark validation and SMD File fraud The TMCH is responsible for maintaining Sunrise eligibility requirements, validating and authenticating marks (as applicable), and hearing challenges regarding validity of a mark or SMD File. When processing Sunrise applications, Identity Digital relies on the validity of mark holder information contained in SMD Files provided by the TMCH. Disputes regarding the validity of an SMD File are subject to a separate TMCH dispute process and should be submitted to the TMCH using its dispute resolution procedures outlined in https://trademark-clearinghouse.com/dispute prior to initiation of a complaint under this Policy. In the event the TMCH reports fraud in an SMD File or a Sunrise application, Identity Digital may disqualify the Sunrise application or, in the event that fraud is detected after the Sunrise period, delete the applicable domain name(s).
Prior to initiating a dispute under this Policy, potential Complainants must submit complaints to Identity Digital at firstname.lastname@example.org. When possible, Identity Digital may attempt to resolve the issue internally without charge. If, in the opinion of Identity Digital, the matter would be more appropriately dealt with by the TMCH, Identity Digital will advise the potential Complainant accordingly. If the complaint relates to a registry process error, Identity Digital will investigate and if upheld seek to resolve such errors internally without charge. In the event Identity Digital, in its discretion, is unable to resolve the dispute, Identity Digital will notify the potential Complainant to submit its complaint to the Provider as outlined in this Policy.
Any person can raise a complaint under this Policy, subject to the following:
Identity Digital may in its sole discretion bar a Vexatious Complainant from future filing under this Policy.
4.1 Sunrise complaints To prevail in a Sunrise dispute under this Policy, a Complainant must prove by clear and convincing evidence that any of the following grounds apply:
4.2 DPML complaints To prevail in a DMPL dispute, a Complainant must prove by clear and convincing evidence that any of the following grounds apply:
Questions or disputes regarding the ability of a mark holder to override a DPML block should be addressed to Identity Digital at DPML@identity.digital. Additional information regarding DPML is available on the Identity Digital Website.
5.1 Timing of submission
5.2 Format of submission All submissions, including any annexes, under this Policy must be lodged electronically via the appropriate form on the Provider’s Website. 5.3 Providing evidence
The complaint must conclude with the following statement for and on behalf of the Complainant: “Complainant agrees that its claims and remedies concerning the registration of the domain name, the dispute, or the dispute’s resolution shall be solely against the Respondent and waives all such claims and remedies against (a) the dispute resolution provider and panellists except in the case of deliberate wrongdoing, (b) the registrar, (c) Identity Digital, its directors, officers, employees, affiliates and agents, and (d) ICANN as well as their directors, officers, employees and agents.” “Complainant certifies that the information contained in this complaint is to the best of Complainant’s knowledge complete and accurate, that this complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this complaint are warranted under this Policy and under applicable law, as it now exists or as it may be extended by a good faith and reasonable argument.” Annex any documentary or other evidence upon which the Respondent relies, together with a schedule indexing all documents.
The response must conclude with the following statement for and on behalf of the Respondent: “Respondent certifies that the information contained in this response is to the best of Respondent’s knowledge complete and accurate and that the assertions in this response are warranted under this Policy and under applicable law, as it now exists or as it may be extended by a good faith and reasonable argument.” Annex any documentary or other evidence upon which the Respondent relies, together with a schedule indexing such documents.
The Panellist is not required to consider any further statements submitted by or on behalf of the parties in relation to any administrative proceeding under this Policy.
A Panellist shall be impartial and independent and shall have, before accepting appointment, disclosed to the Provider any circumstances giving rise to justifiable doubt as to the Panellist’s impartiality or independent. If, at any stage during the administrative proceeding, new circumstances arise that could give rise to justifiable doubt as to the impartiality or independence of the Panellist, the Panellist shall promptly disclose such circumstances to the Provider. In such event, the Provider shall have the discretion to appoint a substitute Panellist.
No party or anyone acting on its behalf may have any unilateral communication with the Panellist. All communications between a Party and the Panellist shall be made through the Provider.
The Provider shall forward the file to the Panellist as soon as appointed.
There shall be no in-‐person hearings (including hearings by teleconference, video conference or web conference).
16.1 Basis of decision
16.2 Communication of decision to the parties Within five (5) days after receiving the decision from the Panellist, the Provider shall communicate the full text of the decision to each party, the applicable registrar, and Identity Digital.
Identity Digital will implement the remedy as directed by the Panellist’s decision unless Identity Digital has received within ten (10) days of issuance of such decision official documentation (such as a copy of a complaint, file-‐stamped by the clerk of the court) that the Complainant or Respondent has commenced and served a lawsuit against the other party/parties in another venue. If Identity Digital receives such documentation within the ten (10) day period, Identity Digital will not implement the decision, and will take no further action, until Identity Digital receives (i) satisfactory evidence of a resolution between the parties; (ii) satisfactory evidence that the lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing the lawsuit or ordering that a party/parties have no right to the domain name(s) in dispute.
On initiation of a complaint under this Policy, the disputed domain name(s) will be locked against modification or transfers between registrants and/or registrars, and against deletion.
The dispute process set forth in this Policy does not prevent either party from submitting a dispute concerning the domain name to another administrative proceeding (e.g. UDRP or URS) or to a court of competent jurisdiction. Such activity may be initiated during the Sunrise or DMPL dispute resolution process or after such proceeding is concluded. The party initiating such activity must immediately provide the Provider with notice of commencement of such activity, whereupon any active proceedings under this Policy will be stayed pending the outcome of the proceedings so initiated.
Except in the case of deliberate wrongdoing, neither Identity Digital, the Provider, nor any Panellist shall be liable to a party for any act or omission in connection with any administrative proceeding under this Policy.
The language of proceedings shall be English. All communications shall be in English. It is the responsibility of the parties to provide certified translations into English of all documents and supporting evidence whose original is in any other language, along with a copy of the original.
This Policy is subject to change in Identity Digital discretion. It is the obligation of the parties to check the most recent version of this Policy as published on the Identity Digital Website. The version of this Policy in effect at the time of submission of the complaint to the Provider shall apply to the relevant administrative proceeding.