Settlement of Domain Name Disputes Procedural Rules (Trial Implementation)

(2) "Complainant" means an owner of trademark rights who objects to (a) relevant domain name(s) and files a complaint with DNDSC pursuant to the Resolution Procedures and the Procedural Rules;

(3) "Respondent" means the domain name holder against whom a complaint is filed;

(4) "Domain Name Registry Administrator" means the institution that is responsible for operating and administering the domain name system and maintaining the central domain name database, viz. the China Internet Network Information Center (CNNIC);

(5) "Domain Name Registrar" means a CNNIC-authorized institution that is responsible for accepting domain name registration applications and completing registrations;

(6) "Domain Name Registration Agency" means an institution that accepts domain name registration applications to the extent authorized to do so by a Registrar;

(7) "DNDS" means the CNNIC-recognized and -authorized institution that is responsible for resolving internet domain names registered in China, viz. the Domain Name Dispute Settlement Center of China International Economic and Trade Arbitration Commission (DNDSC);

(8) "Panel of Experts" means a panel composed of one or three experts that has been determined by DNDSC pursuant to the selection(s) of the Parties and that is specifically responsible for the settlement of the domain name dispute;

(9) "Expert" means a person qualified to serve on DNDSC's Panels of Experts on domain name disputes who has been approved by DNDSC and whose name appears in the list of Experts published on DNDSC's website.

PART TWO: PREPARATION AND SERVICE OF DOCUMENTS

Article 3: Documents to be submitted to DNDSC or a Panel of Experts must be submitted by the means and in the manner (including number of copies) stated in these Procedural Rules and be in conformity with the following principles:

(1) the complaint and the response may not contain more than 8,000 characters;

(2) documents sent by either Party must simultaneously be sent to both the other Party and DNDSC;

(3) any document sent by DNDSC to either Party must simultaneously be copied to the other Party;

(4) any document sent by a Panel of Experts to either Party must simultaneously be copied to both DNDSC and the other Party;

(5) in the event a Party sending a document receives notification of non-delivery of the document, or whenever such Party himself believes that the relevant document cannot be delivered successfully, he shall promptly notify DNDSC of the relevant circumstances; thereupon, the sending of any document and the making of any response thereto shall be effected as directed by DNDSC;

(6) either Party may update his contact details at any time by notifying DNDSC.

Article 4: It shall be DNDSC's responsibility to take effective measures to ensure that the Respondent actually receives the complaint. DNDSC shall be deemed to have been discharged from the said responsibility when the Respondent has actually received the complaint or after DNDSC has done the following to cause the Respondent to actually receive the complaint:

(1) sending the complaint to the Respondent according to all postal mail and facsimile addresses recorded in the WHOIS database of the Domain Name Registry Administrator and the Domain Name Registrar for the domain name administration contact, the technical contact, the administrator and the billing contact; and

(2) sending the complaint in electronic form (including annexes that can be sent to the Respondent in the relevant form) to the e-mail addresses recorded in the WHOIS database of the Domain Name Registry Administrator and the Domain Name Registrar for the domain name administration contact, the technical contact, the administrator and the billing contact or, if the domain name resolves to a website, the e-mail address(es) provided under that website's contact method; and

(3) sending the complaint to another correspondence address that the Respondent himself has selected and notified to DNDSC and, to the extent practicable, to all other addresses provided by the Complainant.

Article 5: Except as provided in the preceding Article, the sending of any document to the Complainant or the Respondent pursuant to these Rules shall be effected by the means designated by the Complainant or the Respondent or, in the absence of such designation, by any of the following three means:

(1) by facsimile, with a confirmation of transmission;

(2) by express mail service, postage prepaid and return receipt requested; or

(3) electronically via the web, with a record of transmission retained.

Article 6: Unless otherwise agreed with DNDSC, the complaint or the response to be submitted, and any other documents that may be submitted or that are to be provided upon request, by the Complainant or the Respondent to DNDSC or the Panel of Experts pursuant to these Rules may be submitted in any of the following manners and shall conform to the corresponding provisions of Articles 11 and 19 hereof:

(1) by facsimile, with a confirmation of transmission; or

(2) by transmission to the e-mail address of DNDSC (viz. [email protected]); or

(3) if the Parties so agree, through the case file management system of DNDSC.

Article 7: All documents sent in the course of settlement of a domain name dispute shall be written in Chinese. DNDSC may also decide upon the use of another language therefor, based on the specific circumstances.

Article 8: Except as otherwise provided in these Rules, or decided by a Panel of Experts, all documents provided for in these Rules shall be deemed to have been served:

(1) if sent by facsimile, on the date shown on the confirmation;

(2) if sent by express mail service, on the date marked on the proof of mailing or the receipt;

(3) if sent via the web, on the relevant date of transmission, provided that such date is verifiable.

Article 9: Except as otherwise provided in these Rules, time periods calculated under these Rules to begin on the date when a document is delivered shall begin to run on the earliest date that the document is deemed to have been delivered in accordance with the preceding Article.

Article 10: It shall be the obligation of the sender of a document to retain a record of the specific fact and circumstances of sending, which shall be available for inspection by parties that may be affected by the document and for reporting purposes.

PART THREE: THE COMPLAINT IN A DOMAIN NAME DISPUTE

Article 11: The complaint documents submitted by the Complainant to DNDSC shall be filed in hard copy and (except to the extent not available for annexes) in electronic form, and be in the standard form prepared by DNDSC. The said hard copies shall be in triplicate (in the case of a single-member Panel of Experts) or in quintuplicate (in the case of a three-member Panel of Experts), including the originals. If the case is consolidated with other cases, the number of copies shall be increased according to the number of Parties. The standard form documents can be downloaded from DNDSC's website (www.cietac.org.cn) and, once completed as required, shall be submitted together with the other documents.

Article 12: The complaint shall:

(1) expressly request that a hearing be conducted and an award rendered in accordance with the Resolution Procedures and these Procedural Rules;

(2) provide the name, postal and e-mail addresses and contact telephone and facsimile numbers of the Complainant and of his agent;

(3) specify a preferred manner for communications directed to the Complainant in the domain name dispute settlement proceeding, including the person to be contacted, medium (postal correspondence, e-mail, facsimile, etc.) and contact address, whether for electronic documents or for hard copy;

(4) specify whether the Complainant selects Experts to handle the dispute and whether the Complainant elects to have the disputes decided by a single-member or a three-member Panel of Experts; in the event the Complainant elects a three-member Panel of Experts, he shall select and name three persons from DNDSC's list of Experts, to serve as candidates in his own preferred sequence; alternatively, the Complainant may authorize DNDSC to appoint an Expert on his behalf;

(5) to the extent known to the Complainant, provide the name and contact details (including all postal and e-mail addresses and contact telephone and facsimile numbers) of the Respondent (domain name holder) or of his representative or agent in sufficient detail to allow DNDSC to send the Complainant's complaint to the Respondent in the manner provided for herein;

(6) specify the disputed domain name(s);

(7) identify the Domain Name Registrar(s) and/or Registration Agency/Agencies with which the disputed domain name(s) is/are registered;

(8) specify the trademark(s) for goods or services on which the Complainant's complaint is based, and be accompanied by all materials that can show the status of the rights (the goods and services with which the trademark(s) is/are or will be used, based on such materials);

(9) describe, in accordance with the Resolution Procedures, the grounds on which the complaint is made, in particular:

(a) that the Complainant enjoys trademark rights protected by law;

(b) that the domain name(s) of the Respondent (domain name holder) is/are identical or confusingly similar to such trademark(s);

(c) that the Respondent (domain name holder) does not have trademark rights, or any other legally protected rights or interests in respect of the domain name(s) or other combinations of characters including the domain name(s);

(d) that the Respondent (domain name holder) registered and uses the domain name(s) in bad faith; and

(e) that the Complainant's business has been, or very likely will be, adversely affected by the registration and use of the domain name(s).

If the trademark on which the complaint is based has been recognized by the relevant authority as a well-known trademark, the Complainant shall not be required to provide proof of item (e) of the grounds for complaint mentioned above, provided that he presents valid evidence of the trademark's recognition as a well-known trademark.

(10) specify, in accordance with Article 16 of the Resolution Procedures, the remedies sought;

(11) identify any judicial or arbitration proceedings instituted in respect of the same domain name dispute, whether or not such proceedings have been concluded, and be accompanied by all information obtainable by the Complainant in connection with such proceedings;

(12) state that a copy of the complaint has been sent or transmitted to the Respondent (domain name holder) and the relevant Domain Name Registrar and/or Registration Agency;

(13) conclude with the following statement, followed by the signature or seal of the Complainant or his legal representative, or of his authorized agent:

"The Complainant affirms the following: The relevant complaint is made pursuant to the Resolution of Disputes Concerning Chinese-language Domain Names Procedures (Trial Implementation), the Domain Name Dispute Settlement Center of China International Economic and Trade Arbitration Commission, Settlement of Domain Name Disputes Procedural Rules (Trial Implementation) and relevant laws. The information contained in this complaint is to the best of my knowledge complete and accurate. The relevant complaint and the remedies claimed are solely against the domain name holder and involve neither DNDSC and the Experts on the Panel of Experts nor the Domain Name Registry Administrator, the Registrar, the registration personnel and the Domain Name Registration Agency."

(14) annex any documentary evidence of the status of the rights and any other relevant documents.

Article 13: The Complainant may file a complaint against more than one domain name held by the same domain name holder and request DNDSC to decide to have the same heard on a consolidated basis by one Panel of Experts.

Article 14: Following its receipt of the complaint documents, DNDSC shall review the same for formal compliance with the regulations, so as to determine whether or not they satisfy the requirements for acceptance. If it is determined upon review that the documents satisfy the requirements, a duplicate of the complaint shall be served, in the manner prescribed herein, upon the domain name holder complained against within three working days after receipt of the fee to be paid by the Complainant in accordance with regulations. If, upon review, the complaint documents are found to be formally deficient, DNDSC shall promptly notify the Complainant that he should effect the necessary revisions to the complaint documents within five working days after receipt of the notice. If the Complainant fails to revise the complaint documents within the prescribed time limit, or if the revised documents still fail to satisfy the requirements, his complaint shall be deemed withdrawn.

Article 15: Once the Complainant's complaint has been accepted, DNDSC shall designate one member of its working personnel to be the officer in charge of handling the procedural matters concerning the case. Such case administrator shall provide administrative assistance to the Panel of Experts but shall have no right to comment on substantive matters concerning the domain name dispute and shall have no vote.

Article 16: The official date of commencement of the domain name dispute settlement proceeding shall be the date on which DNDSC completes its service of the complaint documents on the Respondent pursuant to these Procedural Rules.

Article 17: DNDSC shall immediately notify the Parties and the Domain Name Registrar(s) of the date of commencement of the domain name dispute settlement proceeding.

PART FOUR: THE RESPONSE IN A DOMAIN NAME DISPUTE

Article 18: Within 20 working days of the date of commencement of the proceeding the Respondent shall submit his response documents to DNDSC.

Article 19: The Respondent's response shall be filed in hard copy and (except to the extent not available for annexes) in electronic form, and be in the standard form prepared by DNDSC. The said hard copies shall be in triplicate (in the case of a single-member Panel of Experts) or in quintuplicate (in the case of a three-member Panel of Experts), including the originals. If the case is consolidated with other cases, the number of copies shall be increased according to the number of Parties. The standard form documents can be downloaded from DNDSC's website (www.cietac.org.cn) and, once completed as required, shall be submitted together with the other documents.

Article 20: The Respondent's response shall:

(1) refute the Complainant's complaint and claims and declare the bases and specific grounds for continuing to hold and use the disputed domain name(s);

(2) provide the name and contact details (postal and e-mail addresses and contact telephone and facsimile numbers) of the Respondent and of his authorized agent;

(3) specify a preferred manner for communications directed to the Respondent in the domain name dispute settlement proceeding, including the person to be contacted, medium (postal correspondence, e-mail, facsimile, etc.) and contact address, whether for electronic documents or for hard copy;

(4) state whether the Respondent elects to have the dispute decided by a single-member Panel of Experts or a three-member collegiate Panel of Experts; in the event the Respondent elects a three-member Panel of Experts, he shall select and name three persons from the list of Experts published by DNDSC, to serve as candidates in his own preferred sequence; alternatively, the Respondent may authorize DNDSC to appoint an Expert on his behalf;

(5) identify any judicial or arbitration proceedings instituted in respect of the same domain name dispute, whether or not such proceedings have been concluded, and be accompanied by all information obtainable by the Respondent in connection with such proceedings;

(6) state that a copy of the response has been sent or transmitted to the Complainant as prescribed in these Rules;

(7) conclude with the following statement, followed by the signature or seal of the Respondent or his legal representative or the authorized agent thereof:

"The Respondent affirms the following: The relevant response is made pursuant to the Resolution of Disputes Concerning Chinese-language Domain Names Procedures (Trial Implementation), the Domain Name Dispute Settlement Center of China International Economic and Trade Arbitration Commission, Settlement of Domain Name Disputes Procedural Rules (Trial Implementation) and relevant laws. The information contained in this response is to the best of my knowledge complete and accurate. The relevant response and claims are solely against the domain name holder and involve neither DNDSC and the Experts on the Panel of Experts nor the Domain Name Registry Administrator, the Registrar, the registration personnel and the Domain Name Registration Agency."

(8) annex any documentary evidence of the status of the rights and any other relevant documents.

Article 21: At the request of the Respondent, DNDSC may, in exceptional cases, appropriately extend the period of time for the filing of the response documents by the Respondent. The Parties may also agree to extend the period for the filing of the response by the Respondent, provided the agreement is approved by DNDSC.

PART FIVE: APPOINTMENT OF THE PANEL OF EXPERTS

Article 22: The Panel of Experts in charge of the domain name dispute settlement proceeding shall be composed of one or three Experts. The domain name dispute shall be heard by a single-member Panel of Experts, unless both Parties expressly select a three-member Panel of Experts. The appointment methods shall include the following:

(1) If the case is to be heard by a single-member Panel of Experts, the expert shall be appointed by DNDSC from its list of Experts.

(2) If the case is to be heard by a three-member Panel of Experts, DNDSC shall appoint one candidate from each of the lists of candidates provided by the Complainant and the Respondent, unless it has been authorized by a Party to appoint the same. When appointing the Experts, DNDSC shall respect the sequences of the selections made by the Parties. In the event DNDSC is unable to appoint an Expert on its customary terms from the list of candidate Experts provided by a Party within five working days of the date on which it receives such list, DNDSC shall make that appointment from its list of Experts. The third Expert shall be appointed by DNDSC from its list of Experts. The third Expert shall act as chief Expert.

If the Respondent fails to submit a response, or if he does submit a response but fails to specify how the Panel of Experts should be appointed, DNDSC shall appoint the Panel of Experts in the following manner:

(1) if the Complainant has elected a single-member Panel of Experts, DNDSC shall appoint one Expert from its list of Experts;

(2) if the Complainant has elected a three-member Panel of Experts, DNDSC shall, if possible, appoint one Expert from among the candidates provided by the Complainant, and appoint the second Expert and the chief Expert from its list of Experts.

Article 23: Experts may decide at their own discretion whether or not to accept their appointment. To ensure that the dispute settlement proceeding is carried out in an expeditious and smooth manner, if an Expert selected as a candidate refuses to accept his appointment, DNDSC will appoint another Expert on its own and form the Panel of Experts.

Article 24: Following the formation of the Panel of Experts, DNDSC shall deliver the case materials to all the members of the Panel of Experts in a timely manner, and give timely notice to each Party of the details of the formation of the Panel of Experts and the date set by the Panel of Experts for rendering the award in the case.

Article 25: A member of the Panel of Experts shall be impartial and independent and shall have, before accepting appointment, disclosed to DNDSC any circumstances that may give rise to justifiable doubt as to his independence or impartiality. If, at any stage during the proceeding, new circumstances arise that may give rise to justifiable doubt as to his independence or impartiality, that member of the Panel of Experts shall promptly disclose such circumstances to DNDSC. In such event, DNDSC shall have the discretion to appoint a substitute Expert.

If a Party believes that a material interest exists between a certain Expert and the other Party and that such interest could influence the impartial decision of the case, he shall communicate the same to DNDSC before the Panel of Experts renders its award on the relevant dispute. The decision as to whether or not the Expert should recuse himself shall be made by the director of DNDSC.

Experts shall submit a declaration of independence and impartiality to DNDSC before accepting their appointment.

Article 26: Communications between the Parties on the one hand and DNDSC and the Panel of Experts on the other hand shall be routed through the case administrator. Neither Party may have any unilateral communication with any member of the Panel of Experts.

PART SIX: DECISION OF DOMAIN NAME DISPUTES

Article 27: The Panel of Experts shall decide the domain name dispute in accordance with the Resolution Procedures and these Procedural Rules and on the basis of the respective claims and evidence provided by the Parties in the complaint and the response submitted by them.

While the dispute is being handled, the Panel of Experts shall treat the Parties with equality and give each Party an equal opportunity to state the facts, explain its grounds and provide evidence.

The Panel of Experts shall ensure that the dispute settlement proceeding takes place with expedition. The Panel of Experts has the right, at the request of a Party, to extend, in exceptional cases, a period of time fixed by these Rules

The Panel of Experts has the right to decide upon the admissibility, relevance, materiality and weight of the evidence.

Article 28: In addition to the complaint and the response required for submission, the Panel of Experts shall have the right to request further statements or relevant evidentiary materials from either of the Parties.

Article 29: Under normal circumstances, there shall be no in-person hearings (including any hearings by teleconference, videoconference or web conference) during the domain name dispute settlement proceeding, unless the Panel of Experts considers such a hearing to be necessary. Subject to payment of the relevant fee, a Party may also request the Panel of Experts to conduct an in-person hearing.

Article 30: In the event that a Party, in the absence of an exceptional reason, does not comply with any of the time periods established by the Procedural Rules or determined by the Panel of Experts, the Panel of Experts will proceed to an award in the dispute involved.

Article 31: If a Party, in the absence of an exceptional reason, does not comply with any provision of the Procedural Rules or any order from the Panel of Experts, the Panel of Experts has the right to draw such inferences therefrom as it considers appropriate.

Article 32: In the absence of exceptional circumstances, the Panel of Experts shall render its award in the domain name dispute involved, and deliver it to DNDSC, within 14 working days after its establishment.

Article 33: Prior to signing its award, the Panel of Experts shall deliver the draft award to DNDSC. Without prejudice to the independent rendering of an award by the Panel of Experts, DNDSC may review the award as to formal issues.

Article 34: With respect to a case heard by a collegiate Panel of Experts composed of three Experts, the award shall be rendered by a majority. Each Member shall have equal voting rights. If the Panel of Experts is unable to render a majority award, the award shall be rendered according to the opinion of the chief Expert.

Article 35: The award shall be in hard copy and in electronic form, state the award rendered and the reasons on which it is based, indicate the date on which it was rendered and identify the name(s) of the Expert(s).

Article 36: Generally, the award may not contain more than 8,000 characters. Any dissenting opinion accompany the award. If the Panel of Experts concludes that the dispute that is the subject of the complaint is not within its jurisdiction, it shall so state as well.

Article 37: In the event that, prior to or during a proceeding, any judicial or arbitration proceedings are initiated in respect of the (a) domain name in dispute, the Panel of Experts shall have the discretion to suspend or terminate the proceeding, or to proceed to an award.

In the event that, during the pendency of a proceeding, a Party initiates any judicial or arbitration proceedings in respect of the (a) domain name in dispute, he shall promptly notify the Panel of Experts and DNDSC.

Article 38: A domain name dispute settlement proceeding may be terminated before the Panel of Experts renders an award if:

(1) the Parties reach a settlement between themselves;

(2) the Panel of Experts considers it unnecessary or impossible to continue the proceeding for another reason, unless a Party raises justifiable grounds for objection within a period of time to be determined by the Panel of Experts.

PART SEVEN: SERVICE AND PUBLICATION OF THE AWARD

Article 39: Within three working days after receiving the award from the Panel of Experts, DNDSC shall communicate the full text of the award to each Party, the Domain Name Registry Administrator and the concerned Registrar(s).

Article 40: Except if the Panel of Experts determines otherwise based on the request of a Party or the specific circumstances of the dispute, DNDSC shall publish the full award on its website (www.cietac.org.cn).

PAART EIGHT: FEE

Article 41: The Complainant shall pay to DNDSC a fee within the time and in the amount required. Unless the Panel of Experts and DNDSC decide otherwise, the fee rates shall be as set forth below:

(1) Fee Rates:

(2) Fee Payment and Refund:

(a) Within 10 working days after submitting his complaint to DNDSC, the Complainant shall pay to DNDSC according to the above fee rates the fee required for the domain name dispute settlement proceeding, based on the number of members of the Panel of Experts as selected by him and the number of domain names complained against by him. If the relevant fee is not paid as required within the said period of time, the complaint shall be deemed withdrawn.