Web Dispute Resolution Policy

Philip Argy, Chairman of the WIPO Planning Committee has sent out a new draft Web Dispute Resolution Policy and invited comment. He is in Geneva at WIPO conferences, so if you are there, look him up, otherwise you can join the WDRP discussion group on Facebook or email him comments. It is a shame WIPO are not producing the policy as a well formatted web page. Here is my attempt at a web translation:

1. Purpose. This Web Dispute Resolution Policy (the "Policy") is incorporated by reference into your agreement with us as an organisation that provides any web-based facility or application, and sets forth the terms and conditions that will apply in connection with any dispute between you and a third party involving intellectual property which includes copyright, trademarks, trade secrets, patents, designs including matters such as the use of an identity, name or avatar used by you, or otherwise challenging the legality of your conduct. Proceedings under this Policy will be conducted according to the Rules for Web Dispute Resolution Policy (the "Rules of Procedure"), which are available at www.wipo.org/wdrp/wdrp-rules-24nov2009.htm , and WIPO's supplemental rules available at www.wipo.org/wdrp/wdrp-supprules-24nov2009.htm.

2. Your Representations. By participating in our site or availing yourself of any services or facilities we provide, you hereby represent and warrant to us that (a) the information that you provided during your registration process are true, complete and accurate; (b) to your knowledge, the name, identity, avatar, photograph and other mechanisms by which you participate in our site do not infringe upon or otherwise violate the rights of any third party; (c) you are not registering for an unlawful purpose; and (d) you will not violate, nor cause us to violate, any applicable laws or regulations in connection with your acts or omissions in interacting with our site. It is your responsibility to determine whether your conduct violates the law or someone else's rights.

3. Cancellations, Transfers, and Changes. We will cancel, transfer or otherwise make changes to your registration under any of the following circumstances:

a. subject to the provisions of Paragraph 8 , our receipt of written or appropriate electronic instructions from you or your authorized agent to take such action;

b. our receipt of an order from a court or arbitral tribunal, in each case of competent jurisdiction, requiring such action; and/or

c. our receipt of an order by an Administrative Panel requiring such action in any administrative proceeding to which you were a party and which was conducted under this Policy or a later version of this Policy adopted by WIPO.

We may also cancel, transfer or otherwise make changes to a registration in accordance with the terms of your Registration Agreement or other legal requirements.

4. Mandatory Administrative Proceeding.

This Paragraph sets forth the type of disputes for which you are required to submit to a mandatory administrative proceeding. These proceedings will be conducted under the auspices of the World Intellectual Property Organisation ("WIPO").

a. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to WIPO, in compliance with the Rules of Procedure, that your conduct involving our application or facility:

(i) infringes any intellectual property rights of the complainant; and

(ii) there is no legitimate basis for your conduct; and

(iii) your conduct is in bad faith.

In the administrative proceeding, the complainant must prove that each of these three elements are present.

b. Evidence of Bad Faith. For the purposes of Paragraph 4(a)(iii) , any of the following circumstances, in particular but without limitation, if found by the Panel to be present, constitutes prima facie evidence that your conduct is in bad faith:

(i) circumstances indicating that your conduct was engaged in primarily for the purpose of selling, renting, or otherwise transferring rights to the complainant or to another person, for valuable consideration in excess of your documented out-of-pocket costs directly related to your acquisition of those rights; or

(ii) you have used the complainant's intellectual property in a way which prevents the complainant or someone who derives rights from the complainant from enjoying the full benefits of those intellectual property rights, provided that you have engaged in a pattern of such conduct; or

(iii) you have used the complainant's intellectual property primarily for the purpose of disrupting the business of the complainant or another person; or

(iv) you have intentionally attempted to attract, for commercial gain, users to your web site or other on-line location, by creating a likelihood of confusion between you, or any goods or services you offer, and another person or any goods or services they offer, in relation to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location or on a website or location to which a link is provided on or from your website or location .

c. How to Demonstrate a Legitimate Basis for Your Conduct in Responding to a Complaint. When you receive a complaint, you should refer to Paragraph 5 of the Rules of Procedure in determining how your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, constitute conclusive evidence that there is a legitimate basis for your conduct for the purposes of Paragraph 4(a)(ii) :

(i) before you first became aware or should have become aware of the complainant's intellectual property rights, your use of, or demonstrable preparations to use, the intellectual property rights your use of which are the subject of the complaint in connection with a bona fide offering of goods or services by you or by a person deriving rights from you (but excluding domain monetisation conduct); or

(ii) you (as an individual, business, or other organization) have legitimately acquired the intellectual property rights your use of which are the subject of the complaint, even if you have no formally registered rights; or

(iii) you are making a legitimate noncommercial or fair use of intellectual property rights, without intent for commercial gain to misleadingly divert consumers or to tarnish the complainant or its intellectual property rights.

d. WIPO. WIPO is to administer the proceeding, except in cases of consolidation as described in Paragraph 4(f) .

e. Initiation of Proceeding and Process and Appointment of Administrative Panel. The Rules of Procedure state the process for initiating and conducting a proceeding and for appointing the panel that will decide the dispute (the "Administrative Panel").

f. Consolidation. In the event of multiple disputes between you and a complainant, either you or the complainant may petition to consolidate the disputes before a single Administrative Panel. This petition shall be made to the first Administrative Panel appointed to hear a pending dispute between the parties. This Administrative Panel may consolidate before it any or all such disputes in its sole discretion, provided that the disputes being consolidated are governed by this Policy or a later version of this Policy adopted by WIPO .

g. Fees. All fees charged by WIPO in connection with any dispute before an Administrative Panel pursuant to this Policy must be paid by the complainant, except in cases where you elect to expand the Administrative Panel from one to three panelists as provided in Paragraph 5(b)(iv) of the Rules of Procedure, in which case all fees will be borne equally by you and the complainant.

h. Our Involvement in Administrative Proceedings. We do not, and will not, participate in the administration or conduct of any proceeding before an Administrative Panel. In addition, we will not be liable as a result of any decisions rendered by the Administrative Panel.

i. Remedies. The remedies available to a complainant pursuant to any proceeding before an Administrative Panel are limited to requiring the cancellation and/or banning of your registration with us, or the dismissal of the complaint .

j. Notification and Publication. WIPO will notify us of any decision made by an Administrative Panel with respect to your registration with us. All decisions under this Policy will be made publicly available on WIPO's website, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.

k. Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 4 do not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel orders that your registration should be cancelled or transferred, we will wait 10 business days (as observed in the location of our principal office) after we are informed by WIPO of the Administrative Panel's decision before implementing that decision. We will then implement the decision unless we have received from you during that 10 business day period official documentation (such as a copy of court initiating process, sealed by the court) evidencing that you have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction is either the location of our principal office or of your address as shown in our database. See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure for details.) If we receive such documentation within the 10 business day period, we will not implement the Administrative Panel's decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing your lawsuit or declaring that you do not have the right to continue your registration with us .

5. All Other Disputes and Litigation. All other disputes between you and any party other than us regarding your conduct that are not brought pursuant to the mandatory administrative proceeding provisions of Paragraph 4 are to be resolved between you and such other party through any court, arbitration or other proceeding that may be available.

6. Our Involvement in Disputes. We will not participate in any way in any dispute between you and any party other than us regarding your registration and conduct. You must not name us as a party or otherwise include us in any such proceeding. In the event that we are named as a party in any such proceeding, we reserve the right to raise any and all defences deemed appropriate, and to take any other action necessary to defend ourselves.

7. Maintaining the Status Quo. We will not cancel, transfer, activate, deactivate, or otherwise change the status of any registration under this Policy except as provided in Paragraph 3 above or in accordance with any of our other terms and conditions by which you are bound .

8. Transfers During a Dispute.

a. Transfers. You may not transfer your registration to another person (i) during a pending administrative proceeding brought pursuant to Paragraph 4 or for a period of 15 business days (as observed in the location of our principal place of business) after such proceeding is concluded; or (ii) during a pending court proceeding or arbitration commenced regarding your conduct unless the party to whom the registration is being transferred agrees, in writing, to be bound by the decision of the court or arbitrator. We reserve the right to cancel any transfer of registration to another person that is made in violation of this subparagraph.

b. Changing Organisations. To the extent that it is technically possible to do so, you must not transfer or delegate your registration to another organisation during a pending administrative proceeding brought pursuant to Paragraph 4 or for a period of 15 business days (as observed in the location of our principal place of business) after such proceeding is concluded. You may transfer administration of your registration to another person during a pending court action or arbitration, provided that your conduct continues to be subject to the proceedings commenced against you in accordance with the terms of this Policy. In the event that you transfer a registration to us during the pendency of a court action or arbitration, the dispute remains subject to the dispute resolution policy of the organisation from which the registration was transferred.

9. Policy Modifications. We reserve the right to modify this Policy at any time with the permission of WIPO. We will post our revised Policy at at least 30 calendar days before it becomes effective. Unless this Policy has already been invoked by the submission of a complaint to WIPO, in which event the version of the Policy in effect at the time it was invoked will apply to you until the dispute is over, all such changes will be binding upon you with respect to any dispute, whether the dispute arose before, on or after the effective date of our change. In the event that you object to a change in this Policy, your sole remedy is to cancel your registration with us. The revised Policy will apply to you until you cancel your registration.

From: Web Dispute Resolution Policy, Revised Discussion Draft, Planning Committee, WIPO, 11 October 2009.