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RE: [registrars] Proposed Domain Name Dispute Policy
Jason Hendeles wrote:
To All Registrars:
Please find enclosed a draft Domain Name Dispute Policy that was prepared by
A Technology Company, Inc. and Mikki Barry. While, we appreciate the efforts
of AOL and Register, we have already put considerable effort into developing
our own agreement. We we be pleased to accept any comments or suggestions.
Alternatively, we will begin to review the Skadden draft.
NOTE: I do not feel that our agreement (the combine registrar
document)should in any way assume any form of direct responsibility. We
should be deferring all legal precedent and resolution process to WIPO and
the appropriate National and International judicial systems entirely.
A Technology Company, Inc.
DOMAIN NAME REGISTRATION AGREEMENT
B. FEES & PAYMENTS
C. DISPUTE POLICY
D. DISPUTE POLICY CHANGES OR MODIFICATIONS
G. LIMITATION OF LIABILITY
J. NO GUARANTEE
K. RIGHT OF REFUSAL
N. GOVERNING LAW
O. ACCEPTANCE OF THE AGREEMENT
This domain name registration agreement ("Registration Agreement") is
submitted to A TECHNOLOGY COMPANY, INC. ("ATC") for the purpose of applying
for and registering a domain name on the Internet. If this Registration
Agreement is accepted by ATC, and a domain name is registered in ATC's
domain name database and assigned to the Registrant ("You"),
You agree to be bound by the terms of this Registration Agreement and the
terms of ATC's Domain Name Dispute Policy ("Dispute Policy") which is a part
of this Registration Agreement. You must agree to both the Domain Name
Dispute Policy and the Registration Agreement. If Your Domain Name
registration is accepted by ATC, the legal place for the formation of our
contractual relationship will be the offices of ATC.
B. FEES & PAYMENTS
You must have paid our fees and agreed to the Registration Agreement and
Dispute Policy before ATC will register Your Domain Name. Once ATC registers
the Domain Name, it will be resolved in the ATC Root Tables. You agree to
pay a registration fee of Seventy Five US Dollars (US$75) as consideration
for the registration of each new domain name for the first two (2) years, or
Thirty Five US Dollars (US$35) to renew an existing registration for a
covering period of one (1) year. The payment may be made payable either
directly to "A TECHNOLOGY COMPANY, INC.", or indirectly to ATC through Your
Internet Service Provider ("ISP") if Your ISP has entered into an agreement
with ATC to do so.
After the first thirty days, the Domain Name registration fees are
non-refundable. The fees include any permitted modifications to the Domain
Name record during the covered period.
If the Registrant decides to cancel the Domain Name within thirty (30) days
after the Domain Name is resolved by the ATC Root Tables, All fees will be
refunded, and the Domain Name registration will be cancelled.
C. DISPUTE POLICY
You specifically agree as a condition to submitting this Registration
Agreement, that You will be bound by both the Registration Agreement, and
ATC's current Dispute Policy. The Dispute Policy can be found at:
D. DISPUTE POLICY CHANGES OR MODIFICATIONS
You agree that ATC can modify this Dispute (which is a part of this
Registration Agreement and is specifically agreed to as a condition of
registration of a Domain Name) from time to time. If You choose to continue
Your Domain Name registration after any modification of the policies, You
automatically accept these modifications. If You disagree, or find the
modifications unacceptable, You can request that the Domain Name
registration be cancelled. Cancellation will delete the domain name from
You agree that even if You registered a Domain Name through an Agent, You
will still be bound by the Dispute Policy and Registration Agreement, as if
You had registered the Domain Name directly through ATC. An Agent is an
individual, corporation or organisation who registers a domain name on
behalf of a third party. The Agent of a domain name hold's no rights over a
domain name holder and must hold ATC harmless for any actions it may take.
F. LIMITATION OF LIABILITY
You agree that ATC will not be liable to You for any loss You may suffer in
connection with ATC's processing of this Registration Agreement, or any
authorised modifications to Your Domain Name record during the covered
period. You also agree that if You incur a loss as a result of Your ISP or
agent's failure to pay the registration or renewal fees, or if You incur a
loss because of the Dispute Policy, ATC will not be liable for those losses,
or for any consequential or special damages, even if You inform us of the
possibility of damages before hand. You agree that in no event will ATC's
maximum liability for any matter under this Agreement of the Dispute policy
exceed two hundred ninety nine and 00/100 U.S. dollars (US$299.00).
You agree that if ATC accepts Your Registration Agreement and any dispute
arises with anyone else regarding Your registration or use of a Domain Name
whether due to Your World Wide Web content, defamatory electronic mail,
unlawful file transfers, or for any other reason, You agree to indemnify and
hold ATC harmless for any damages awarded, for our legal fees, or any other
costs ATC incurs defending itself, pursuant to the terms and conditions
contained in both this Registration Agreement, and the Dispute Policy.
You agree that Your failure to abide by any provision of this Registration
Agreement or the Dispute policy will be a material breach, and ATC may
provide You with a written notice describing the breach. If within thirty
(30) days of mailing this notice to You, if You fail to provide evidence
which is reasonably satisfactory to ATC that You have not breached Your
obligations, we may delete Your Domain Name registration without further
notice. Any such breach will not be deemed to be excused even if ATC does
not act earlier in response to that or any other breach by You.
You warrant, by submitting this Registration Agreement, that to the best of
Your knowledge and belief, the information contained in Your registration is
true and correct, and that if this information changes in the future, You
will provide the new information to ATC in a timely manner according to the
Domain Name modification procedures in place at that time. Breach of this
warranty will constitute a material breach of this Registration Agreement,
and ATC can delete Your Domain Name registration. If ATC finds out that You
have provided misleading information or if You conceal or omit any
information ATC would likely consider material to its decision to approve
this Registration Agreement either during initial registration, or
subsequent modification(s), ATC may delete Your Domain Name.
J. RIGHT OF REFUSAL
ATC, in its sole discretion, may refuse Your registration for a Domain Name
if it believes that this registration may damage ATC. You agree that by
merely submitting a Registration Agreement, ATC is not obliged to accept it
and register You a Domain Name. You also agree that if ATC chooses not to
register the Domain Name, ATC will not be liable for loss or damages that
may result. If ATC rejects Your Registration Agreement, You will be notified
of the reasons for the rejection, and You may ask ATC for reconsideration.
You agree that the terms of this Registration Agreement and the attached
Domain Name Dispute Policy are severable. If any term or provision is
declared invalid by a court of competent jurisdiction, it will not affect
the remaining terms or provisions, which shall continue to be binding on
You agree that this Registration Agreement and the Dispute Policy constitute
the complete and exclusive agreement between You and ATC regarding the
registration of Your Domain Name. This Registration Agreement and the
Dispute Policy supersede all prior agreements and understandings, whether
established by custom, practice, policy, or precedent.
M. GOVERNING LAW
You agree that this Registration Agreement shall be governed in all respects
by and construed in accordance with the laws of the Province of Ontario,
Canada. By submitting this Registration Agreement, You agree to the
exclusive jurisdiction and venue residing in the Toronto District Court for
the Province of Ontario, Canada. If subject matter jurisdiction is improper
Toronto District Court, You agree that venue and jurisdiction shall be in
the Federal Court of Ontario, Ottawa, Canada.
N. ACCEPTANCE OF THE AGREEMENT
This is Domain Name Registration Agreement Version Number 1. This
Registration Agreement is for registrations under the generic top-level
domains: "COM", "ORG", "NET", and "EDU". By completing and submitting this
Registration Agreement for consideration and acceptance by ATC, the
Registrant agrees that
he/she has read and agrees to be bound by both this Agreement in its
entirety, and the attached Domain Name Dispute Policy. Electronic acceptance
of this agreement is legally binding upon receiving and activation of the
second-level domain name.
A TECHNOLOGY COMPANY
DOMAIN NAME DISPUTE POLICY
A Technology Company. ("ATC") is responsible for the registration of
second-level Internet domain names in the generic top level domains ".COM,"
".ORG," ".NET" and ".EDU." ATC registers these second-level domain names
within on a "first come, first served" basis. By registering a domain name
directly or through the appropriate country code registrar. ATC does not
assume responsibility for determining the legality of domain name
registrations, or otherwise evaluate whether that registration or use may
infringe upon the rights of a third party.
2. Registrant's warranties
The entity applying for a domain name ("You") are solely responsible for
selecting Your own domain name and ensuring the continued accuracy of the
registration record. By completing and submitting the Domain Name
Registration Agreement ("Registration Agreement"), You represent that the
statements in its application are truthful, and You agree to keep this
3. Neutrality of ATC
ATC neither acts as arbiter nor provides resolution of disputes between
registrants and third party complainants arising out of the registration or
use of a domain name. This Domain Name Dispute Policy ("Policy") does not
confer any rights, procedural or substantive, upon third party complainants.
Likewise, complainants are not obligated to use this Policy.
4. No Limitation on ATC's Procedures
This Policy does not limit the administrative or legal procedures ATC may
use when third party conflicts arise that directly involve ATC, or when ATC
is presented with information that a domain name violates the legal rights
of a third party, including, but not limited to, information that the
display or use of the domain name is expressly prohibited by a Canadian
federal statute or regulation.
You acknowledges and agrees that ATC may modify or amend this Policy from
time to time, and that such changes are binding upon the registrant. ATC
will post the revised Policy at [*fill in here*] at least fifteen (15)
calendar days before it becomes effective.
You agrees to defend, indemnify and hold harmless ATC, its officers,
directors, employees and agents for any loss or damages awarded by a court
of competent jurisdiction resulting from any claim, action, or demand
arising out of or related to the registration or use of the domain name.
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.
ATC shall send written notice to the You of any such claim, action, or
demand against that party within a reasonable time. You also agree to send
written notice to ATC of any such claim, action, or demand within a
reasonable time. Your failure to notify ATC, however, does not absolve You
of Your obligations under this Dispute Policy, or under the Registration
Agreement. ATC recognises that certain educational and governmental entities
may not be able to provide complete indemnification. If You are (I) a
governmental or non-profit educational entity, and (ii) not permitted by law
or under Your organisational documents to provide indemnification, You must
notify ATC in writing and, upon receiving appropriate proof of such
restriction, ATC may provide an alternative provision for
such a registrant.
You agree that ATC shall have the right in its sole discretion to revoke,
suspend, transfer or otherwise modify a domain name registration upon ten
(10) calendar days prior written notice, or immediately and without notice
if ATC receives a properly authenticated order from a court of competent
jurisdiction, or arbitration award, requiring the revocation, suspension,
or modification of the domain name registration.
You agree that ATC will not be liable for any loss of registration and use
of Your domain name, or for 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 ATC has been advised of the
possibility of such damages. In no event shall ATC' maximum liability exceed
two hundred ninety nine and 00/100 U.S. dollars (US$299.00).
All notices between You and ATC permitted or required under this Policy
shall be in writing and shall be delivered by personal delivery, courier
delivery, facsimile transmission, e-mail delivery and/or by first class
mail, and shall be deemed served upon delivery, transmission, or seven (7)
calendar days after deposit, whichever occurs first. Initial notices shall
be sent to the domain name registrant at the address of the domain name
registrant listed in ATC's WHOIS database.
Nothing contained in this Policy shall be construed as creating any agency,
partnership, or other form of joint enterprise between the parties.
The failure of ATC to require Your performance of any provision of either
the Dispute Policy or the Registration Agreement, shall not affect the full
right to require performance at any time thereafter; nor shall the waiver by
ATC of a breach of any provision be taken or held to be a waiver of the
> -----Original Message-----
> From: firstname.lastname@example.org [mailto:email@example.com]On
> Behalf Of JIMBRAMSON@aol.com
> Sent: June 19, 1999 4:49 AM
> To: firstname.lastname@example.org; email@example.com
> Cc: Louis_L._Touton@jonesday.com; firstname.lastname@example.org;
> email@example.com; firstname.lastname@example.org; email@example.com
> Subject: [registrars] Proposed Domain Name Dispute Policy
> To all Testbed and Post-Testbed Registrars:
> Attached please find a draft Domain Name Dispute Policy that was
> prepared by
> our counsel, Skadden, Arps, Slate, Meagher & Flom. The draft is
> based upon
> Annex IV to the Final Report on the WIPO Domain Name Process, but
> is written
> in an informal style intended to be more accessible to the
> average consumer.
> In particular, the attached draft policy incorporates WIPO's concepts
> regarding arbitration for the narrow category of disputes
> relating to abusive
> registration and the limited remedies available through the arbitration
> process. This draft policy does not include WIPO's suggestions regarding
> exclusions of "famous marks." Since the use of "famous mark"
> exclusions is
> still a hotly contested issue, we believe that WIPO's proposal
> should not be
> adopted until there is a broader consensus on this issue.
> As you know, ICANN has passed a resolution that there should be a unified
> domain name dispute policy. We are therefore soliciting comments on this
> draft from the other accredited registrars. In order to complete
> this policy
> for use by the testbed registrars as soon as possible, we are
> asking that all
> comments be provided to us no later than Friday, June 25. We are
> also asking
> that each registrar submit no more than one set of comments, to
> the process. All comments should be sent to RRODIN@SKADDEN.COM and
> SLEVI@SKADDEN.COM. Skadden will then circulate a revised policy
> incorporating comments received from the other registrars, and
> any points not incorporated and the reason for not including them
> (e.g., in
> the event of disagreement among registrars).
> Please note that AOL and register.com have paid for the creation of this
> draft policy without any contribution from any other registrar.
> Since we are
> opening up this work product to solicit your feedback with the goal of
> developing a policy that will be acceptable to and uniformly
> adopted by all
> of the registrars, we are asking that all participating
> registrars contribute
> to the work Skadden will undertake going forward to review and
> your respective comments. We are asking that each registrar who submits
> comments or who expects to adopt the policy that is being
> created, contribute
> $1,000 towards this effort. Payments should be payable to
> America Online,
> Inc. and sent to Jim Bramson, America Online, Inc., 22000 AOL
> Way, Dulles, VA
> 20166. Once the project is completed, if the registrars have
> contributed more than necessary to cover Skadden's bills, we will
> provide pro
> rata reimbursements, or at the contributors' request, donate the
> excess funds
> to the Registrar Constituency.
> Please contact us with any questions you may have. Thank you for your
> Jim Bramson (AOL)
> Rich Forman (register.com)