CoCCA | Complaint Resolution Service (“CRS”) | Part A - Policy
Version 2.4 | Effective Date | Tuesday, November 15, 11
1. Statement of Purpose
1.1. This Complaint Resolution Service (“Service”) provides a transparent, efficient and cost effective way for the public, law enforcement, regulatory bodies and intellectual property owners to have their concerns addressed regarding use of a Council of Country Code Administrators Incorporated (”CoCCA”) member’s network or services.
1.2. The Service provides a single framework in which cyber-crime, accessibility of prohibited Internet content via a member’s network or services, and abuse of intellectual property rights are addressed. The framework relies on three tiers of review: immediate action to protect the public interest, Amicable Complaint Resolution by an Ombudsman, and where applicable adjudication by an Expert. This CRRS provides an efficient and swift alternative to the Courts. This document (“Part A – Policy”) defines the policy, and the Complaint Resolution Service Procedures document (“Part B – Procedure”)defines the procedures to be followed in addressing a complaint.
2.1. CoCCA is a not-for-profit member-owned Incorporated Society. Members administer country code top level domains (ccTLDs) and have granted CoCCA a nonexclusive right to receive and facilitate resolution of complaints involving domain names registered in their respective ccTLDs. This approach benefits members and the public with economies of scale, a harmonized policy framework, and a “single desk” where complaints can be lodged.
2.2. A Shared Registry System (“SRS”) establishes a single register for registering domain names and associated technical and administrative information. Each member maintains a SRS register for the ccTLD they administer.
2.3. The registration of domain names and modification of information associated with such names on the register can be affected only by authorized registrars. Registrars are responsible for the information they collect.
2.4. Neither registrars nor the CoCCA members get involved in complaints regarding who has a better right to be recognized as the registrant of a domain name. Members have, however, adopted Acceptable Use Polices (“AUP”) that govern the use of their network -and by extension any domain name in such member’s ccTLD. Members will undertake actions to ensure compliance with their AUP as directed either by the Courts or as set out in this document.
2.5. This policy may be amended from time to time as described below in paragraph
2.6. Thanks go to the office of the Domain Name Commissioner of New Zealand and Nominet UK for establishing the framework on which this Service is largely based.
Appeal Panel means a panel appointed by the Ombudsman under Procedure paragraph 17.7;
AUP means the Acceptable Use Policy CoCCA means the Council of County Code CoCCA | Complaint Resolution Service (“CRS”) | Part A - Policy Administrators Incorporated, a member-owned society incorporated in New Zealand;
CoCCA Ombudsman (Ombudsman) means the individual(s) retained by CoCCA to provide informal arms-length mediation of complaints and oversee delegation of complaints to Experts if Amicable Complaint Resolution fails and a Complainant expresses a desire to have the matter adjudicated;
Complainant means a third party who asserts to the CoCCA Complaint Officer the elements set out in paragraph 2.3 of this Policy and according to the Procedure, or, if there are multiple complainants, the 'Lead Complainant' (see Procedure, paragraph 2.2);
Complaint means a complaint submitted to the CoCCA Complaint Officer by a Complainant under Procedure paragraph 2;Complaint Officer – an individual appointed by CoCCA to accept and process the resolution of a complaint in accordance with the procedures set out in the Complaint Resolution Service Procedure document;
Complaint Resolution Service means the service provided by the CoCCA according to this policy and procedure;
Commencement of Complaint Resolution Service proceedings means the date upon which the Complaint Officer transmits notice of commencement of the Complaint to the Parties pursuant to Procedure paragraph 3.3;
Conclusion of Complaint Resolution Service proceedings means the date on which the Parties are notified of a Decision or the date on which the parties amicably settle the Complaint;
Days mean, unless otherwise stated, any calendar day other than Saturday or Sunday; or any public holiday In the Indian Ocean Territories.
Decision means the decision reached by the Complaint Officer or Expert and where applicable includes decisions of an appeal panel;
Domain Name means a domain name maintained in a CoCCA member’s register;
Domain Name Hijacking means using the Policy in bad faith in an attempt todeprive a registered domain-name holder the use of a domain name;
Expert means a person appointed to resolve a Domain Name Complaint under paragraphs 7 or 17 of the Complaint Resolution Service Procedure;
Amicable Complaint Resolution means impartial mediation that is conducted under Procedure paragraph 6 to facilitate an acceptable resolution to the Complaint;
ISP means an internet service provider; Party means a Complainant or Respondent and Parties have a corresponding meaning;
Policy means this Policy;
Procedure means the Procedure contained in Complaint CoCCA | Complaint Resolution Service (“CRS”) | Part A - Policy Resolution Service Procedure document (Procedure) for addressing complaints under the Service; Register means the authoritative database and record of domain namesmanaged and operated by a CoCCA member;
Registrant means the entity entered in the Register as registrant with respect to a Domain Name;
Registrar means the entity entered in the Register as registrar with respect to a Domain Name;
Reply means a submission made to the Complaint Officer by a Complainant under Procedure paragraph 5;
Respondent means the entity in whose name or on whose behalf a Domain Name is registered and against whom the Complainant makes a Complaint;
Response means a submission made to the CoCCA Complaint Officer by a Respondent under Procedure paragraph 4;
Rights includes, but are not limited to, rights enforceable under applicable law.;
4. Complaint Resolution Service
4.1. This Policy and Procedure applies to Respondents when a Complainant alleges to the Complaint Officer according to the Procedure, that there has been an Acceptable Use Policy (AUP) violation.
4.2. The Complainant is required to illustrate to the Complaint Officer or Expert on the balance of probabilities there has been an AUP Violation.
5. Evidence of AUP Violation
5.1. A list of factors which may be evidence that there has been an AUP Violation is set out in the applicable CoCCA member’s AUP policy. These polices may be inspected at http://www.cocca.org.nz
5.2. Failure on the Respondent's part to use a Domain Name for the purposes of e-mail or a web site is not in itself evidence that an AUP Violation has occurred.
5.3. There shall be a presumption of AUP Violation if the Complainant proves that the Respondent has been found to have made an AUP Violation in three (3) or more Complaint Resolution Service cases in the two (2) years before the Complaint was filed. This presumption can be rebutted (see paragraph 6.5.
5.4. In making a decision, the Complaint Officer or Expert shall not take into account any evidence of acts or omissions amounting to an AUP Violation or use which occurred more than three (3) years before the date of the Complaint.
6. Demonstration by Respondent that there has not been an AUP Violation
6.1. A non-exhaustive list of factors which may be evidence that there has not been an AUP Violation is set out in paragraphs 6.1.-- 6.3. Before being aware of the Complainant's cause for complaint (not necessarily the Complaint itself), the Respondent has:
a) used or made demonstrable preparations to use the Domain Name or a Domain Name which is similar to the Domain Name in connection with a genuine offering of goods or services;
b) been commonly known by the name or legitimately connected cpr144449003101 with a mark which is identical or similar to the Domain Name;
c) made legitimate non-commercial or fair use of the Domain Name; or
d) The Domain Name is generic or descriptive and the Respondent is making fair use of it in a way which is consistent with its generic or descriptive character;
6.2. In relation to the AUP, that the Registrant's holding of the Domain Name is consistent with an agreement entered into by the Parties, which agreement is evidenced by a written instrument; or
6.3. In relation to the AUP, that the Domain Name is not part of a wider pattern or series of registrations because the Domain Name is of a significantly different type or character to the other domain names registered by the Respondent.
6.4. Fair use may include sites operated solely in tribute to, or in criticism of, a person or business.
6.5. If paragraph 5.3 applies, the Respondent must rebut the presumption by proving in the Response that the registration of the Domain Name is not an AUP Violation.
Amicable Complaint Resolution
7.1 After the Complaint Officer has received the parties under the Complaint Service Resolution Procedure, it will recommend immediate action or request the Ombudsman to initiate and conduct a period of Amicable Complaint Resolution under paragraph B6 of the Procedure.
8. Without Prejudice
8.1. Documents and information which are 'without prejudice' (or are marked as being 'without prejudice') may be used in submissions and may be considered by the Expert. Notice that the Expert will not consider such materials if:
a) they are generated within Amicable Complaint Resolution; or
b) the Expert believes that it is in the interests of justice that the document or information be excluded from consideration.
9. Appointment of Expert
9.1. If an acceptable resolution cannot be achieved by Amicable Complaint Resolution the Ombudsman will notify the Parties that it will appoint an Expert when the Complainant has paid the applicable fees set out in Procedure paragraph 20.1 within the time specified in paragraph 7.1. The Expert will come to a written Decision.
10. Notification and Publication
10.1. A Decision will be communicated to the Parties according to Procedure paragraph 16 and all Decisions will be published in full on the CoCCA web site.
10.2. Fees are payable by the Complainant or otherwise according to Procedure paragraph 20 only if an acceptable resolution has not been achieved by Amicable Complaint Resolution and once the Ombudsman has notified the Parties that an Expert is to be appointed.
11. Exclusion of Liability
11.1. Neither CoCCA nor its officers, employees or members nor any Expert, Mediator, Registrar or any employee or officer of any such party shall be liable to a party for anything done or omitted, whether negligently or otherwise, in connection with any proceedings under the Complaint Resolution Service unless the act or omission is shown to have been in bad faith.
12. Appeal, Repeat Complaints and Availability of Court Proceedings
12.1. Either Party will have the right under Procedure paragraph 17 to appeal a Decision. The Appeal Panel will consider appeals on the basis of a full review of the matter and may review procedural matters.
12.2. The Ombudsman may refer questions of interpretation of the Policy and Procedure to the Appeal Panel. Any decision rendered as a result of this referral will not affect any Decision in any other previous proceedings under the Complaint Resolution Service.
12.3. The Ombudsman will publish Decisions of the appeal panel. Appeal Decisions will not be binding precedents, but will be of persuasive value to Experts in future decisions.
12.4. The operation of the Complaint Resolution Service will not prevent either the Complainant or the Respondent from submitting the Complaint to an applicable court or decision making body of competent jurisdiction or to an arbitral tribunal of competent jurisdiction. However, any proceeding under this Policy, whether before an Ombudsman, Complaint Officer, Expert, or Appeal Panel, shall be suspended pending the decision of the court, decision making body, or tribunal. The proceeding under this Policy shall only be re-started if directed to do so by the court, decision making body, or tribunal.
12.5. If a Complainant has obtained a Decision in previous Complaint Resolution Service proceedings it will not be reconsidered by an Expert (however there may be rights of appeal, see paragraph 12.1 and Procedure paragraph 17). If the Expert finds that the Complaint is a resubmission of an earlier Complaint which has been resolved, then he or she shall reject the Complaint without consideration of its merits.
12.6. in determining whether a Complaint is a resubmission of an earlier Complaint, or contains a material difference that justifies the Complaint being heard, the Expert shall consider the following questions:
a) Are the Complainant, the Respondent, and the Domain Name at issue the same as in the earlier case?
b) Does the substance of the Complaint relate to acts that occurred prior to or subsequent to the close of submissions in the earlier case?
(c) If the substance of the Complaint relates to acts that occurred prior to the close of submissions in the earlier case, are there any exceptional grounds for the rehearing or reconsideration, bearing in mind the need to protect the integrity and smooth operation of the Policy and Procedure?
(d) Does the substance of the Complaint relate to acts that occurred subsequent to the close of submissions in the earlier Decision? (Acts on which the re-filed Complaint is based should not be, in substance, the same as the acts on which the previous Complaint was based).
12.7. A non-exhaustive list of examples which may be exceptional enough to justify a rehearing under paragraph 12.6.(c) include:
a) serious misconduct on the part of the Expert, a party, witness or lawyer;
b) false evidence having been offered to the Expert;
c) the discovery of credible and material evidence which could not have been reasonably foreseen or known for the Complainant to have included it in the evidence in support of the earlier Complaint;
d) a breach of natural justice.
13. Implementation of Expert Decisions
13.1. The Expert’s powers, as part of a Decision, include powers to direct that a Domain Name should be cancelled, suspended, modified or otherwise amended. The Expert may not, however, make any orders directing a party to pay costs of the Complaint Resolution Service proceedings.
13.2. If the Expert makes a Decision that a Domain Name registration should be cancelled, suspended, modified or otherwise amended, the Ombudsman will implement that
Decision by requesting the CoCCA member(s) responsible for the applicable Register to make the necessary changes to the Register according to the process set out in Procedure paragraph 16. The details set out in the Complaint form will be used unless the Complainant specifies other details in good time.
an arbitral tribunal of competent jurisdiction. However, any proceeding under this Policy, whether before an Ombudsman, Complaint Officer, Expert, or Appeal Panel, shall be suspended pending the decision of the court, decision making body, or tribunal. The proceeding under this Policy shall only be re-started if directed to do so by the court, decision making body, or tribunal.If a Complainant has obtained a Decision in previous Complaint Resolution Service proceedings it will not be reconsidered by an Expert (however there may be rights of appeal, see paragraph 12.1 and Procedure paragraph 17). If the Expert finds that the Complaint is a resubmission of an earlier Complaint which has been resolved, then he or she shall reject the Complaint without consideration of its merits.In determining whether a Complaint is a resubmission of an earlier Complaint, or contains a material difference that justifies the Complaint being heard, the Expert shall consider the following questions:
14. Other action
14.1. The Complaint Officer or Ombudsman will not cause any Domain Name registration to be cancelled, activated, deactivated, or otherwise changed except as set out in paragraphs 13 and Procedure paragraph 3.4 and in accordance with the applicable policies and procedures, which are available on the CoCCA website
14.2. Expiration of a Domain Name that is the Subject of a Complaint.
a) This paragraph 14 shall not affect or change the expiration date of any Domain Name or the post-expiration policies or practices of any ccTLD or Registrar.
b) If a Domain Name which is the subject of Complaint is scheduled to expire, and if the Respondent and/or Registrant does not renew the Domain Name registration term, then the Complainant may, anytime within 30 calendar days of the scheduled expiration date, contact the Registrar and pay to have the Domain Name registration term extended by one year. Any such payment and/or extension shall not change the identity of the Registrant with respect to the Domain Name and shall not create any obligation owed by the Registrant to the Complainant.
15. Transfers During a Complaint
15.1. A Domain Name registration may not be transferred to another Registrar or Registrant (whether it is at the same or a different Registrar):
a) if the electronic form of a Complaint has been received by the CoCCA AUP Complaint Officer or CoCCA Member and the matter is pending the receipt of a valid paper copy to confirm the Complaint (to a maximum of five (5) Days); or
b) relation to the Domain Name or for a period of ten (10) Days after the Parties are notified of a Decision by an Expert, per Procedure paragraph 16.1, unless to the Complainant as a result of a settlement reached between the Parties whether or not pursuant to Amicable Complaint Resolution; or
c) whilst a court proceeding, other Complaint resolution hearing or arbitration in respect of the Domain Name registration is ongoing in an applicable court decision-making body of competent jurisdiction or arbitral tribunal of competent jurisdiction.
15.2. The CoCCA Member may reverse any transfer of a Domain Name registration that does not comply with paragraph 15.1.
15.3. A Respondent may not transfer the Domain Name to another Registrar whilst proceedings under the Complaint Resolution Service are ongoing in relation to the Domain Name or for a period of ten (10) Days after the Parties are notified of a Decision by an Expert, per Procedure paragraph 16.1.
15.4. Any change in the Registrant Information (as this term is defined in the Registrar Agreement) after the Complaint Officer provides notice to the parties that a Complaint has been started pursuant to Procedure paragraph 3.3, shall have no effect on the Complaint proceeding and shall not change the identity of the Respondent or the party whom all registrars shall treat as the Domain Name registrant, unless such change is a result of a settlement or agreement reached between the Parties whether or not pursuant to Amicable Complaint Resolution. Any such change in Registrant Information shall be reversed as soon as practicable after either party brings the problem to the attention of the Complaint Officer or Ombudsman. No fees will be refunded to any party in the course of reversing any unauthorized change in Registrant Information.
16. Modifications to the Policy and Procedure of the Complaint Resolution Service
16.1. The Internet is an emerging and evolving medium and the regulatory and administrative framework under which it operates is constantly developing. For these reasons CoCCA reserves the right to make modifications to the Policy and Procedure at any time. Except where CoCCA is acting pursuant to a statutory requirement or a court order, substantive changes will be implemented following a process of open public consultation. Each such change will be published in advance (where practicable, 30 calendar days in advance) on the CoCCA web site and will become binding and effective upon the date specified therein.
16.2. In any Complaint Resolution Service proceedings, the Parties will be bound by the Policy and Procedure that are current at the commencement of Complaint Resolution Service proceedings, until the conclusion of the Complaint Resolution Service proceedings.