I. GENERAL PRINCIPLES

II. DEFINITIONS

III. AVAILABLE REMEDIES

    A. Remedies

    B. Particular Features for Exclusions

    C. Consolidation in a Claim

    D. Time Limit

    E. Third Party Participation

IV. PRINCIPLES GOVERNING ASSERTION OF INTELLECTUAL PROPERTY RIGHTS

V. DETERMINATIONS AND CRITERIA

    A. Determinations

    B. Claims Involving a Respondent

    C. Claims not Involving a Respondent

    D. Criteria for Determinations

        (a) The Intellectual Property Right and Interests Asserted by Claimant

        (b) Rights and Interests of Respondent

        (c) Trafficking

        (d) Bad Faith

        (e) Third Party Rights and Interests

        (f) General Exclusion

        (g) Partial or Complete Cancellation of Exclusion

VI. SUSPENSIONS

VII. APPEALS

VIII. PUBLICATION AND IMPLEMENTATION

ANNEX A

ANNEX B

ANNEX C

1.  Section 2(f) of the Memorandum of Understanding on the Generic Top-Level Domain Name Space of the Internet Domain Name System ("gTLD-MoU") adopts a policy that:

2.  This policy will be implemented by Administrative Domain Name Challenge Panels ("ACPs"), constituted under authority of Section 8 of the gTLD-MoU. The present document sets forth the Substantive Guidelines to be applied by the ACPs, and should be read in conjunction with the WIPO ACP Rules, which contain detailed procedural rules under which the ACPs will be constituted and administered by the WIPO Arbitration and Mediation Center. By virtue of the provisions of the Memorandum of Understanding for the Internet Council of Registrars ("CORE-MoU"), the ACP determinations shall be implemented by CORE and the Registrars.

3.  ACPs reach their determinations under authority of the gTLD-MoU system, which aims to manage the domain names within that system in the public trust. Persons registering domain names in the CORE-gTLDs are bound by applicable ACP determinations under the terms and conditions of registration.

4.  The ACPs perform an administrative function in applying the above-mentioned policy in ACP procedures initiated in relation to domain names within the CORE-gTLDs. ACPs have jurisdiction only over domain names within that system, and do not have jurisdiction over any persons.

5.  The ACP procedures do not preclude resort to a court or to any other available means of dispute resolution agreed by the Parties. Any dispute that has been submitted to an ACP may be brought, at any time before, during or after the ACP procedure, to a court or such other procedures. In such case, the ACP shall have discretion to consider whether it will proceed to hear the claim and to reach a determination.

6.  In addition to the definitions in Article 1 of the CORE-MoU, the following definitions apply to these Guidelines:

    "ACP" means an Administrative Challenge Panel as referred to in Article 8 of the CORE-MoU;

    "alphanumeric string" means a sequence of letters, numbers and other characters;

    "Claimant" means the Party initiating a claim concerning a domain name or second-level domain name in the CORE-MoU system;

    "Domain name" means the sub-level domain name, plus the top-level domain name, separated by ".";

    "gTLD" means a CORE-gTLD;

    "Paris Convention" means the Paris Convention for the Protection of Industrial Property;

    "Party" means the Claimant or the Respondent, and does not include any other person that the ACP has decided may participate in the procedures;

    "Participant" means any person, other than a Party, that the ACP has decided may participate in ACP procedures;

    "Respondent" means the holder of the domain name or the beneficiary of an exclusion with respect to which a claim has been filed;

    "SLD" means the sub-level part of the domain name, and refers to any second- or other sub-level name that may be registered or excluded, and does not include the top-level domain name;

    "TRIPS" means the Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C to the Agreement Establishing the World Trade Organization;

    "WIPO" means the World Intellectual Property Organization;

    "WIPO Center" means the WIPO Arbitration and Mediation Center;

    "WIPO ACP Rules" means the WIPO Rules for Administrative Challenge Panel Procedures Concerning Internet Domain Names, as established and modified by the WIPO Center;

Words used in the singular include the plural and vice versa, as the context may require.

A. Remedies

7.  Any person may request, within an ACP claim, any of the following remedies under these Guidelines:

    (a) Transfer of domain name: that an SLD registered in one or more gTLDs be transferred to the Claimant. This means the Respondent’s registration would be cancelled, and the SLD would, for a limited period [to be determined] following the ACP determination, be reserved for registration by the Claimant.

    (b) Specific exclusion: that the registration of an SLD be excluded from the gTLD(s) specified in the claim. This means that the SLD would not be available for registration or exclusion by any third person in the gTLD(s) specified in the claim.

    (c) General exclusion: that the registration of an SLD be excluded from all present and future gTLDs (subject to paragraph 12 below), except from any gTLD(s) that may be specified by the Claimant. This means the SLD would not be available for registration or exclusion by any third person in any present or future gTLD, except in any gTLD(s) specified by the claim.

    (d) Partial or complete cancellation of exclusion: that a specific or general exclusion, previously granted by an ACP, be cancelled in whole or in any gTLD(s) specified in the claim, and, if requested by the Claimant, that the SLD that is the subject of the exclusion be reserved for registration by the Claimant in any gTLD(s) specified in the claim. This means the Respondent would lose its specific or general exclusion in whole or in part, and, if so determined by the ACP in response to the Claimant’s claim, the SLD would, for a limited period [to be determined] following the determination, be available for registration by the Claimant.

    (e) Provisional Suspension: that the registration of an SLD in any gTLD(s), in respect of which the Claimant has filed its claim within 30 days of the date on which CORE has published the registration of that domain name, be provisionally suspended.

8.  In conjunction with one or more of the above remedies, a Claimant may request that an SLD registered in one or more gTLDs be modified, re-assigned to a different gTLD, or subject to any other measures that would remove the grounds of the dispute, such as indexing or site-linking. Any determination by an ACP to such effect, however, is subject to the agreement of both Parties.

B. Particular Features for Exclusions

9.  Pro-active exclusions. A request for specific or general exclusion may be submitted pro-actively (without involving a Respondent) with respect to any gTLD(s) in which a third person does not yet hold registration or exclusion rights in relation to an SLD.

10.  Modalities for seeking exclusions. Depending on the circumstances, a request for specific or general exclusion may entail one or more of the following: (i) proceeding pro-actively with respect to any gTLD(s) in which a third person does not yet hold registration or exclusion rights in relation to the SLD; (ii) requesting the cancellation of a registration held by a Respondent; (iii) requesting the transfer of a registration held by a Respondent and obtaining the exclusion in other gTLDs; (iv) requesting the transfer of a specific or general exclusion held by a Respondent.

11.  Provisional exclusion. When a claim for pro-active specific exclusion is submitted, registration of the SLD shall be provisionally excluded from all the gTLDs named in the claim in which it is not yet registered or excluded. Similarly, when a claim for pro-active general exclusion is filed, registration of the SLD shall be provisionally excluded from all gTLDs in which it has not yet been registered or excluded. The provisional exclusion shall remain in effect for the duration of the ACP proceedings.

12.  The scope of a general exclusion granted by an ACP shall be subject to any decision that may be taken, or any agreement that may be entered into, by the Policy Oversight Committee with respect to the possible merger of any other domain name registration system with the gTLD-MoU system.

C. Consolidation in a Claim

13.  More than one SLD. A claim may relate to more than one SLD, whether or not registration or exclusion rights exist as to each SLD. If any such rights exist in relation to the SLDs that are the subject of the claim, they must be held by the same Respondent. In addition, the grounds on which the claim is made in respect of each SLD must be closely related so as to justify consolidation in one claim. For example, the SLDs in dispute may be similar, or they may be asserted to have been collectively appropriated by the Respondent; or two SLDs may have been registered by the Respondent, while other similar SLDs as to which an exclusion is claimed were not.

14.  More than one gTLD. For each SLD that is the subject of the claim, the Claimant may seek remedies in relation to one or more gTLDs.

D. Time Limit

15.  An ACP shall not consider any claim that is submitted more than [three] years after the date of registration or exclusion within the gTLD-MoU system of the domain name to which the claim relates.

E. Third Party Participation

16.  Request to participate. In connection with any claim submitted by a person under these Guidelines, any third person may submit a request to participate. This means such third person, if so permitted by the ACP in response to the request to participate, would have the opportunity to submit a Statement of Participant.

17.  Any claim under these Guidelines must be based on an assertion of a valid intellectual property right held by the Claimant.

18.  The assertion of the intellectual property right must specify, for each applicable country, a description of the nature of the right, the date it first existed, and, where the right resulted from a registration procedure, the entity that granted or registered the right, and the corresponding registration or other identifying number and particulars.

19.  Factors which, for purposes of these Guidelines, may be capable of establishing the existence of an intellectual property right include those listed in Annex A.

20.  Factors which, for purposes of these Guidelines, shall establish conclusively the effective equivalent of an intellectual property include those listed in Annex B.

A. Determinations

21.  An ACP may make any of the following determinations:

    (a) To grant or deny all or part of the claim.

    (b) To determine that the claim is not appropriate for the ACP procedure.

    (c) To apportion and award the costs of the ACP procedure, and to make appropriate determinations with respect to any posted bond.

    (d) Upon request of either Party at any time, or at the ACP’s initiative, and subject to the agreement of both Parties, to determine that the SLD held by the
         Respondent be modified, re-assigned or subject to any other measures to avoid conflict with the rights of the Claimant.

22.  Subject to paragraph 21(c), the ACPs shall not award monetary damages.

B. Claims Involving a Respondent

23.  Identical or confusingly similar SLD. When a claim relates to an SLD registered by, or excluded in favor of, a Respondent, the ACP shall determine whether the SLD is identical or confusingly similar to the alphanumeric string that is the subject of the intellectual property right asserted in the claim, such that it is probable that the registration and use, or exclusion, of the domain name would lead to an erroneous conclusion of a connection to or approval by the Claimant; unfairly impair or take advantage of the distinctive character of the intellectual property right; constitute unfair competition; or in any other way dilute or damage the rights and interests of the Claimant, including its visibility on the Internet. In making this determination, the ACP shall take into account the factors listed in Annex C.

24.  Limitation of determinations. In light of the administrative function and evolving nature of the ACP system, the capacity of an ACP to make a determination in a dispute involving a Respondent shall be limited as follows:

    (a) Manifest Imbalance Between the Rights and Interests of the Parties. The ACP may make a determination in favor of a Party if its rights and interests are found to outweigh clearly those of the other Party. This principle will apply when an SLD is determined to be identical, or confusingly similar, to the alphanumeric string that is the subject of the Claimant’s intellectual property right, and such right and related interests predominate over any rights and interests that the Respondent may have in relation to the domain name.

    Trafficking is a salient example of such a manifest imbalance. The ACP may make a determination in favor of a Party when it finds that the other Party has engaged in trafficking (cybersquatting, cyberjesting or warehousing), through the deliberate registration of an SLD without relevant rights, on account of the SLD being identical or confusingly similar to the alphanumeric string that is the subject of the Claimant’s intellectual property right, in order to hoard or to resell the domain name, or for other cognate purposes.

    (b) Bad Faith. The ACP may make a determination in favor of a Party when it finds that the other Party has manifestly acted in bad faith.

25.  In determining whether the dispute falls within the scope of the preceding paragraph, the ACP shall apply the relevant criteria set forth in section D below. If the ACP finds that the dispute does not fall within the scope of the preceding paragraph, it shall make a determination that the claim is not appropriate for ACP procedures. This will apply if the dispute involves, for example, conflicting but evenly balanced intellectual property rights. In all such cases, an ACP may recommend that the dispute be submitted to another form of dispute resolution, such as mediation and/or arbitration, or court litigation.

C. Claims not Involving a Respondent

26.  Pro-active Proceedings. An ACP may make a determination in favor of a Party submitting a claim for pro-active specific or general exclusion when it finds that the Party’s asserted intellectual property rights and interests satisfy the relevant criteria set forth in section D.

D. Criteria for Determinations

27.  In making its determination, an ACP shall take into account all the circumstances of the dispute and shall, in particular, apply the criteria set forth below:

    (a) The Intellectual Property Right and Interests Asserted by Claimant

28.  In weighing any intellectual property right and interests asserted by the Claimant, the ACP shall consider:

        (i) the original date, duration, extent and geographical area of any existence or registration(s), promotion, market presence or use of the right;

        (ii) the goods, services or purposes for which the intellectual property right is registered or used or exists;

        (iii) the uniqueness of the alphanumeric string that is the subject of the intellectual property right, including whether it is a descriptive term, or a generic term inside or outside the applicable field of commerce, whether third parties hold intellectual property rights in relation to the same or similar alphanumeric strings, or whether they hold identical or similar SLDs in other gTLDs;

        (iv) the record of enforcement of the right, including its recognition by courts and other competent authorities;

        (v) the financial value represented by the right.

    (b) Rights and Interests of Respondent

29.  The ACP shall consider the rights and interests of the Respondent in relation to the domain name, including the following factors:

        (i) any intellectual property right held by the Respondent in the alphanumeric string corresponding to the SLD. In connection with any such right, the ACP shall consider the factors listed in paragraph 28;

        (ii) any application for such an intellectual property right filed by the Respondent, the date of such filing, and any indications whether the filing was not in good faith;

        (iii) use of the domain name by the Respondent on the Internet. Factors to consider in this regard include the duration of use; the goods, services or purposes in connection with which the SLD is used; whether the use is commercial or non-commercial, or relates to public service; the extent of public recognition of the domain name; the Respondent’s interest in continued use; the contents of the Web page or of e-mail messages associated with the domain name; the nature of the gTLD in which the domain name is registered; whether the SLD corresponds to the Respondent’s name or nickname and is registered in a gTLD dedicated to personal names; and any non-use or abandonment of the domain name.

    (c) Trafficking

30.  Circumstances which, for purposes of these Guidelines, may constitute trafficking include the following:

        (i) any spontaneous offer to sell, rent or otherwise dispose of the domain name, made by the Respondent prior to the date of the ACP claim, to the Claimant or to any member of the public;

        (ii) any other registrations of SLDs held by the Respondent, in other top-level domains, which are identical or confusingly similar to alphanumeric strings that are the subject of intellectual property rights of others, and in which the Respondent has no rights;

        (iii) the maintenance by the Respondent of the domain name in a "private collection" or other personal holding, without making bona fide use of the domain name.

31.  An ACP may take into account trafficking not only in relation to the merits of the claim, but also in its determination on the costs of the ACP procedure or the discharge of any posted bond.

(d) Bad Faith

32.  Circumstances which, for purposes of these Guidelines, may constitute bad faith include the following:

        (i) the registration by a Party of a domain name incorporating a competitor’s trademark or trade name for the purpose of disrupting that competitor’s business;

        (ii) the submission of false or misleading information, including aliases or name variations, knowingly submitted by a Party in the application for domain name registration or in the ACP procedures;

        (iii) the submission of a claim by a Claimant with the intent of disrupting the Respondent’s activities on the Internet without just cause; for example, when the Claimant has not used the subject matter of the intellectual property right;

        (iv) the procurement by a Respondent who does not use its domain name of a corresponding intellectual property right without intention to use such right;

        (v) the submission by the Claimant of repeated claims concerning the same domain name without any change in the Respondent’s use of that domain name.

33.  An ACP may take into account bad faith not only in relation to the merits of the claim, but also in its determination on the costs of the ACP procedure or the discharge of any posted bond.

    (e) Third Party Rights and Interests

34.  The ACP shall consider the rights and interests of any third parties, where appropriate, including the observations of any Participant contained in a Statement of Participant.

    (f) General Exclusion

35.  In connection with a claim for general exclusion (including a claim for pro-active general exclusion), the ACP shall consider whether its assessment of the foregoing factors, in particular those listed in this section D, warrant the granting of this exceptional remedy on the basis of the international significance and widespread market presence of the Claimant’s intellectual property right. The ACP shall also weigh the interests of users of the Internet in relation to the SLD for which the general exclusion is sought. The ACP may consider, taking into account the differing nature of each gTLD, whether the SLD should be excluded from all or only some of the existing or future gTLDs.

    (g) Partial or Complete Cancellation of Exclusion

36.  A claim for partial or complete cancellation of exclusion, submitted by a person previously involved as a Party or Participant in an ACP case concerning the SLD that is the subject of such claim, must be based upon a material change of circumstances warranting this exceptional remedy. For example, such a claim might be based on the lapse or invalidation by a court of the intellectual property right underlying the exclusion. A claim for partial or complete cancellation of exclusion, submitted by a person not involved in such prior case as a Party or Participant, must be based upon circumstances not considered in the previous determination that warrant this exceptional remedy.

37.  A claim for suspension shall be immediately referred to an Emergency ACP, which shall determine within four days whether the registration of the domain name by the Respondent should be suspended for the duration of the ACP procedure. The Emergency ACP may make a determination to grant or to refuse the suspension, which may be subject to the posting of a bond in an appropriate amount by the Claimant or the Respondent, respectively.

38.  A claim for suspension shall be accompanied by any relevant information available to the Claimant regarding the domain name and its use by the Respondent. A determination in relation to a claim for suspension shall take into account, among other things, the relative harm that would be suffered by the Respondent or the Claimant; the extent and scope of the Parties’ intellectual property rights; any commercial or other use of the domain name by the Respondent; and the likelihood that the Claimant will prevail on the merits of the dispute.

39.  An ACP may, at its own initiative or at the request of a Party, at any time during the proceedings or in its determination, reconsider the determination of the Emergency ACP in relation to the claim for suspension.

40.  Any determination of an ACP may be appealed to a three member ACP Appeal Panel.

41.  Appeals shall be based on the record of the original ACP proceeding, and shall be decided on the basis of whether the ACP determination made an obvious and material mistake of fact or was manifestly unreasonable. The ACP Appeal Panel may summarily dismiss the appeal if it is apparent that the determination made no such mistake or was not manifestly unreasonable.

42.  Any claim, answer and request to participate shall be made public on the Internet. Any determination of an ACP, Emergency ACP or ACP Appeal Panel, shall also be made public on the Internet, and shall be implemented by CORE, upon notification by the WIPO Center.

1. Factors which, for the purposes of these Guidelines, may be capable of establishing the existence of an intellectual property right include the following, provided they derive from a jurisdiction that is subject to the Paris Convention or TRIPS:

    (a) An intellectual property registration certificate.

    (b) A certificate of filing an application for an intellectual property right, and any indications whether the filing was not in good faith.

    (c) Evidence establishing the existence of a non-registered intellectual property right.

    (d) Final and authoritative court decision establishing the existence of an intellectual property right.

2. For the purposes of these Guidelines, evidence of the prior registration of an SLD in a gTLD other than the gTLD to which the claim relates is not, by itself, capable of establishing the existence of an intellectual property right.

1. Factors which, for the purposes of these Guidelines, shall establish conclusively the effective equivalent of an intellectual property right on the part of relevant entities under the systems referred to below include the following:

    (a) An alphanumeric string that has been the subject of a communication under Article 6ter of the Paris Convention, or under the corresponding provision of TRIPS.

    (b) A name published by the World Health Organization (WHO) in the Cumulative List of International Nonproprietary Names For Pharmaceutical Substances (INN), updated regularly in WHO Drug Information, under authority of the WHO Constitution Chapters II (Arts. 2(a) and (u)) and V (Arts. 21(d) and (e)), and as established by the World Health Assembly (WHA) Resolution 3.11, pursuant to WHA Resolution 46.19.

    (c) An official name of a country, a translation or transliteration of the official name of a country, or a two- or three-letter country code listed in the ISO 3166 list of country codes.

    (d) The name or initials of the following organizations that have participated in the gTLD-MoU process: CORE, IAB, IAHC, IANA, INTA, iPOC, ISOC, ITU, PAB, POC and WIPO.

1. In determining whether an SLD is identical or confusingly similar to the alphanumeric string that is the subject of an intellectual property right asserted in the claim, the ACP shall consider whether the following factors apply:

    (a) Identical. The SLD and the alphanumeric string contain the same alphanumeric characters and punctuation in the identical order. The term "punctuation" includes hyphens, underlining, periods, capitalization, diacritic (accent) marks, commas, and like symbology. "Identical" here means identical character-by-character, such that another SLD would not be allotted in the same gTLD.

    (b) Changes of punctuation. The SLD (or the SLD plus the gTLD) and the alphanumeric string would be made up of the identical alphanumeric characters in the identical order if some or all punctuation marks were ignored; for example, "famoustrademark" and "famous-trademark" or "famoustrade.mark."

    (c) Minor changes. The SLD and the alphanumeric string contain the same alphanumeric characters in the same order, differing only by minor changes of spelling (misspelling or homonyms) or similar character replacement; for example, obvious misspellings ("famustrademark"), homonyms ("famoustraidmark"), and replacement of letters by similar numerals ("fam0ustrademark").

    (d) Translations and Transliterations. The SLD is a translation or transliteration of the alphanumeric string.

    (e) Clearly misleading. The SLD and the alphanumeric string contain the same alphanumeric characters in the same order, differing only in ways that would clearly mislead a user of the Internet; for example, modified or phonetic variations such as "famousmark.gTLD" and "markfamous.gTLD," or "foryou.gTLD" and "4u.gTLD."