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CIRA implements revised CDRP Policy and Rules (Aug 22, 2011) (1 Viewing)

Esdiel

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Home » Legal, Policy, Compliance » CDRP » CIRA implements revised CDRP Policy and Rules

CIRA implements revised CDRP Policy and Rules​

The CIRA Domain Name Dispute Resolution Policy (CDRP), which has been in effect since 2002, is a forum which is intended to provide quick, out-of-court arbitrations at relatively low cost for .CA domain names registered in bad faith.

The Canadian Internet Registration Authority (CIRA) held a public consultation on its CDRP from June 9, 2010 to September 17, 2010 to obtain feedback from interested parties on the effectiveness of the CDRP, and to determine whether this Policy continues to meet the needs of its stakeholders. In response to the submissions from the consultation, CIRA made recommendations and proposed certain additional changes to the CDRP on which it invited further comments from March 3, 2011 to April 31, 2011.

CIRA would like to thank all individuals and organizations that took the time to respond to the initial consultation and the additional proposed changes. CIRA’s implementation incorporates the input from both these phases of the consultation.

Based on all the responses received, CIRA is pleased to announce the implementation of a revised CDRP Policy and Rules, which will take effect August 22, 2011.

In addition to these policy changes, CIRA has made significant improvements to the CDRP section of its website, with the inclusion of such features as the functionality to search all CDRP decisions, improved layout and organization of the online content, as well as more details of each decision.

Set out below is a summary of the changes to the CDRP Policy and Rules. Please note, this summary is provided for convenience only and does not replace or affect the provisions of the CDRP Policy or Rules:

Elements of the CDRP that have been changed​

  1. “Rights” and “Use” of a Trademark Removed. CIRA has removed the provisions in the CDRP Policy relating to “rights” and “use” of a mark. CIRA is of the view that these provisions have created overly technical and complex requirements in terms of what rights qualify for protection. This change will bring the CDRP in line on this issue with the Uniform Domain Name Dispute Resolution Policy (UDRP) used for top-level domain names, as well as in line with the dispute resolution processes of other major ccTLD registries.
  2. Clarification of “Confusingly Similar” Test. It has been clarified in the CDRP Policy that when determining whether a domain name is “Confusingly Similar” to a mark, the narrow resemblance test should be applied. The narrow resemblance test has been applied by the majority of Panellists in CDRP decisions, rather than the broader traditional test for confusion in trademark law, on the basis that the CDRP is not well suited to the kinds of factual determinations involved in a conventional confusion analysis applied in trademark disputes. CIRA has clarified this to ensure that all Panellists use the same test when determining whether a domain name is “Confusingly Similar” to a mark.
  3. Bad Faith / Legitimate Interest Factors to be Non-Exhaustive. The list of bad faith and legitimate interest factors are now non-exhaustive. CIRA believes that the previous approach of having an exhaustive list for bad faith and legitimate interest factors was too restrictive and is in favour of adopting the non-exhaustive list as used in the UDRP.
  4. Bad Faith Factor of Commercial Gain Included. The bad faith factor of use of a domain name for commercial gain has been added. This factor is included in the UDRP. CIRA believes that it should also be incorporated in the CDRP, as this is a legitimate factor which has been recognized by CDRP Panellists.
  5. Elimination of Requirement to use Generic Domain Names. The requirement to use generic domain names in order to establish a legitimate interest has been eliminated, as CIRA is of the view that requiring the use of generic domain names to establish a legitimate interest placed an unfair onus on Registrants.
  6. Clarification of Date of Registration. The “date of registration” has been clarified to specify that it is the date the domain name was registered by the Registrant or a predecessor-in-title of the Registrant. This will bring the CDRP in line with the approach that has been actually adopted by the majority of Panellists in CDRP decisions.
  7. Shortening of Implementation Period. CDRP decisions will now be implemented in 30 days, unless CIRA receives official documentation issued by a Canadian court that the Registrant has commenced a legal proceeding against the Complainant in respect of the domain name that is subject of the Proceeding. This time period has been shortened from the previous 60 day period, which will assist in ensuring that domain name disputes are handled expeditiously.
  8. Electronic Filing. The CDRP Rules now allow parties to file their complaint and submissions electronically in addition to hardcopy format. Parties will have this option for a one year phase-in period. Following this phase-in period, electronic submissions will be required, unless this presents unforeseen difficulties on the parties using the CDRP. This is in line with the approach used by other Registries, and CIRA believes that electronic submissions will help reduce the costs and effort for all parties involved.
  9. Transfers of Domains to Facilitate Settlements. In order to facilitate the settlement of disputes, language has been included in the CDRP Policy to indicate the circumstances in which CIRA may transfer a domain name while a dispute is still ongoing.
  10. Separation of Filing Fees from Panellist Fees. Previously, Complainants were required to pay the entire $4,000 filing fee upon filing a CDRP complaint. This amount included the fees for the Dispute Resolution Provider as well as the fees for the three Panellists. If the Registrant did not file a response, a Complainant could elect to convert the three member panel to a single member and obtain a partial refund of the fees. Under the revised CDRP Rules, Complainants are now only required to pay the Dispute Resolution Provider fee of $1,000 to file a complaint. If the case is not settled and a decision is required, Complainants are then required to pay the fees for the Panellists, specifically, $3,000 for a three member panel, or $1,750 for a one member panel.

Elements of the CDRP that have not been changed​

  1. Eligibility Requirements. CIRA has maintained the eligibility requirements for those who can file a CDRP complaint, namely, those that meet CIRA’s Canadian Presence Requirements. .CA domain names are restricted to those Registrants who meet CIRA’s Canadian Presence Requirements. Accordingly, CIRA is of the view that eligibility to participate in the CDRP should have these same restrictions.
  2. Size of Panels. CIRA has maintained the current size of the CDRP panels. In particular, there will still be the requirement for mandatory three member panels, with the option for the Complainant to convert the three member panel to a one member panel if the Registrant does not file a response. CIRA shares the view of the respondents that three member panels provide a more credible and reliable outcome to domain name disputes, as they allow parties to participate in the arbitrator selection process, and having three members also provides checks and balances to assist in avoiding wrongly decided cases.
  3. Prior Rights. CIRA has maintained the requirement that the Complainant have rights prior to the registration of the domain name. CIRA is of the view that removing this requirement could lead to increased instances of reverse domain name hijacking.
  4. Remedies. CIRA is maintaining the same remedies, as CIRA is of the view that these are sufficient.
  5. Mediation Procedures. CIRA is not implementing any mediation procedures within the CDRP. CIRA is of the view that implementing mandatory mediation would increase the costs and complexity for the parties, in a process that is already a form of alternative dispute resolution.
  6. Appeal Procedures. CIRA is not implementing any appeal procedures within the CDRP. Given that CIRA is maintaining the mandatory requirement for three Panellists, CIRA is of the view that an appeal procedure within the CDRP is unnecessary, and would add further complexity and costs to the CDRP.
  7. Fees. CIRA is maintaining the same fees: $1,000 for the Dispute Resolution Provider, and $3,000 for a three member panel, or $1,750 for a one member panel. The only change is that Complainants will not be required to pay all these fees at the outset (as set out at point #10 above). Although CIRA had proposed reducing the Panellist fees, the majority of respondents were not in favour of this proposal.
  8. Complaint and Response. The format of the Complaint and the Response remains unchanged. Specifically, the Complaint and the Response will include all the submissions, pleadings and evidence in one document. CIRA had proposed stage-gating the CDRP so that the Complaint and Response would only include the preliminary information required, with the delivery of the actual submissions at a later date. However, the majority of respondents were not in favour of this proposal.
  9. No Summary Decisions. The process in situations where a Registrant does not file a response remains unchanged. Specifically, the Complainant will have the option of converting the three member panel to a one member panel, and a full decision will be issued. CIRA had proposed automatically converting the three member panel to a one member panel, and allowing the Complainant to elect for a summary decision at a reduced cost in cases where the Registrant does not file a response. However, the majority of respondents were not in favour of this proposal.

Links​

New CDRP Policy
New CDRP Rules
Summary of CDRP Decisions

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SOURCE: Canadian Internet Registration Authority » Legal, Policy, Compliance » CDRP » CIRA implements revised CDRP Policy and Rules
 
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Esdiel

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Don't these changes date back to August 2011?
The changes are indeed from more than a decade ago, and I had to use archive.org to dig it up.

I guess you can call it a throw-back post that I found interesting. I have more to come too.
 

Esdiel

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Has anyone looked at the changes closely? Good or bad for domainers, or not much difference?
I think it's mostly all positive/reasonable, but not sure what i think of this one below:

Bad Faith Factor of Commercial Gain Included. The bad faith factor of use of a domain name for commercial gain has been added. This factor is included in the UDRP. CIRA believes that it should also be incorporated in the CDRP, as this is a legitimate factor which has been recognized by CDRP Panellists.

It's pretty vague regarding what the implications might be (without saying more) but it doesn't seem to have made much of a difference in the decision making process.
 
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