.ch Domains Dispute & Policy
Last Update 20 August 2012. The most recent source for .ch domains dispute policy can be found at: www.nic.ch/reg/cm/wcm-page/index.html?res=EF6GW2JBPVTG67DLNIQWUZ35PZ5XU235EF6HWYTLPVIXQPZAMR6X4
I.Generald
1.Definitions
Claimant is a natural person or legal entity or a collective or limited partnership initiating Dispute resolution proceedings with regard to one or more of the Respondent's domain names by invocation of right in a distinctive sign.
Conciliator is a person whom the Dispute resolution service provider has appointed in accordance with the Rules of procedure in order to conduct the Conciliation.
Contact details are all available addresses such as postal and e-mail addresses as well as telephone and fax numbers.
Dispute resolution proceedings are proceedings in accordance with these Rules of procedure which have been initiated by a Claimant against a Respondent with regard to one or more of the Respondent's domain names.
Dispute resolution service provider is the institution charged by the Registry with the administration of Dispute resolution proceedings in accordance with these Rules of procedure.
Domain Name is a domain name under the domain ".ch" or ".li" without the ending ".ch" or ".li" (Second-Level Domain).
Expert is a person whom the Dispute resolution service provider has appointed in accordance with these Rules of procedure to decide on the Dispute resolution proceedings.
Holder is a natural person or legal entity or a collective or limited partnership which has registered a domain name on application, and which has contracted with the Registry or a Partner.
Partner is a contracting party of the Registry for the registration and administration of domain names, which acts in respect of its customers and the Registry in its own name and on its own account.
Registration agreement is the agreement on registration of a domain name between the Registry and the Holder in the form of the General Terms and Conditions (GTC) of the Registry, or between a Partner and the Holder as the authorised party with regard to the Registry, within the scope of the GTC and the partner agreement between the Registry and the Partner.
Registry is the legal entity which performs the registration and administration of domain names and which is entrusted with this task by the Swiss Federal Office of Communications (OFCOM) for .ch and by the Office of Communications for .li.
Respondent is the holder of the disputed domain name or domain names, against which Dispute resolution proceedings have been initiated.
Right in a distinctive sign is any right recognised by the legal system devolving from the registration or use of a sign, which protects the holder of the right from infringement of his interests as the result of registration or use of an identical or similar sign by third parties, including, but not limited to, the right in a registered business name, a personal name, a trade mark, a geographical indication and the defensive rights devolving from the law on unfair competition.
Rules of procedure are the regulations for settlement of disputes between a Claimant and a Respondent concerning a domain name, which are incorporated by reference and made part of all Registration agreements concluded after 1 March 2004, or whose term of subscription has been extended after 1 March 2004, or to which the Respondent has submitted by participating in the Dispute resolution proceedings.
Conciliator is a person whom the Dispute resolution service provider has appointed in accordance with the Rules of procedure in order to conduct the Conciliation.
Contact details are all available addresses such as postal and e-mail addresses as well as telephone and fax numbers.
Dispute resolution proceedings are proceedings in accordance with these Rules of procedure which have been initiated by a Claimant against a Respondent with regard to one or more of the Respondent's domain names.
Dispute resolution service provider is the institution charged by the Registry with the administration of Dispute resolution proceedings in accordance with these Rules of procedure.
Domain Name is a domain name under the domain ".ch" or ".li" without the ending ".ch" or ".li" (Second-Level Domain).
Expert is a person whom the Dispute resolution service provider has appointed in accordance with these Rules of procedure to decide on the Dispute resolution proceedings.
Holder is a natural person or legal entity or a collective or limited partnership which has registered a domain name on application, and which has contracted with the Registry or a Partner.
Partner is a contracting party of the Registry for the registration and administration of domain names, which acts in respect of its customers and the Registry in its own name and on its own account.
Registration agreement is the agreement on registration of a domain name between the Registry and the Holder in the form of the General Terms and Conditions (GTC) of the Registry, or between a Partner and the Holder as the authorised party with regard to the Registry, within the scope of the GTC and the partner agreement between the Registry and the Partner.
Registry is the legal entity which performs the registration and administration of domain names and which is entrusted with this task by the Swiss Federal Office of Communications (OFCOM) for .ch and by the Office of Communications for .li.
Respondent is the holder of the disputed domain name or domain names, against which Dispute resolution proceedings have been initiated.
Right in a distinctive sign is any right recognised by the legal system devolving from the registration or use of a sign, which protects the holder of the right from infringement of his interests as the result of registration or use of an identical or similar sign by third parties, including, but not limited to, the right in a registered business name, a personal name, a trade mark, a geographical indication and the defensive rights devolving from the law on unfair competition.
Rules of procedure are the regulations for settlement of disputes between a Claimant and a Respondent concerning a domain name, which are incorporated by reference and made part of all Registration agreements concluded after 1 March 2004, or whose term of subscription has been extended after 1 March 2004, or to which the Respondent has submitted by participating in the Dispute resolution proceedings.
When the overall context so requires, reference to the singular includes the plural and conversely, and words used in the masculine form shall be construed as including the feminine form.
2.Dispute resolution service provider
(a) The Dispute resolution service provider shall be appointed by the Registry. Multiple Dispute resolution service providers may be charged with administering the Dispute resolution proceedings in accordance with these Rules of procedure. The Dispute resolution service providers appointed by the Registry shall be published on the Registry website.
(b) The Registry shall not be a party to Dispute resolution proceedings, but shall participate in such proceedings as provided for in these Rules of procedure.
(c) The Dispute resolution service provider shall be independent of the Registry and shall not be bound by instructions in the administration of Dispute resolution proceedings.
(d) The Dispute resolution service provider shall be obliged to treat as confidential any non-public information which has become known to the Dispute resolution service provider in connection with the administration of Dispute resolution proceedings.
3.List of Conciliators and Experts
(a) The Dispute resolution service provider shall maintain and publish a list of Conciliators and Experts and their qualifications. The Dispute resolution service provider may appoint Experts and Conciliators from a common list. When making such appointments, the Dispute resolution service provider shall attempt to achieve a balanced consideration of the Conciliators and Experts present on its list.
(b) Conciliators must have knowledge of the area of dispute resolution as well as knowledge of the laws of Switzerland or Liechtenstein and must have good oral and written knowledge of one of the following languages in addition to English: German, French and Italian.
(c) Experts must have knowledge of the intellectual property law of Switzerland or Liechtenstein and must have good oral and written knowledge of one of the following languages in addition to English: German, French and Italian.
(d) The Dispute resolution service provider shall propose candidates who are in its opinion appropriate to OFCOM for approval. There is no right to be included in the list. The composition of the list may be adapted to future need in accordance with the experience of the Dispute resolution service provider.
(e) The Dispute resolution service provider may remove Conciliators and Experts from the list if they are no longer available for legal or factual reasons, or if in previous Dispute resolution proceedings they have repeatedly failed to comply with the deadlines and provisions of these Rules of procedure.
4.Independence of Conciliators and Experts
(a) Conciliators and Experts must be independent. Before acceptance of their appointment they must disclose to the Dispute resolution service provider all circumstances which give rise to justifiable doubts as to their independence.
(b) If new circumstances arise during the proceedings which give rise to justifiable doubts as to the independence of a Conciliator or Expert, the Conciliator or Expert concerned shall promptly disclose these circumstances to the Dispute resolution service provider.
(c) A Conciliator or Expert appointed in Dispute resolution proceedings shall not represent any of the parties in the same matter in subsequent court, arbitration or Conciliation proceedings.
5.Replacement of a Conciliator or Expert
(a) The Dispute resolution service provider may replace a Conciliator or Expert if, after appointment of the Conciliator or Expert concerned, justifiable doubts arise as to his independence, in the opinion of the Dispute resolution service provider.
(b) Within five (5) calendar days of the appointment of a Conciliator or Expert a party may present in writing circumstances which give rise to justifiable doubts as to the independence of the Conciliator or Expert concerned. In this case the Dispute resolution service provider decides in accordance with sub-paragraph (a), unless the Conciliator or Expert concerned withdraws.
(c) The Dispute resolution service provider may replace a Conciliator or Expert appointed in a dispute resolution procedure if he has become incapable, for legal or factual reasons, of fulfilling his obligations as part of the dispute resolution procedure concerned, or fails to fulfil these obligations within a reasonable time.
(d) The Dispute resolution service provider may replace a Conciliator or Expert if both parties have applied in writing for the replacement of the Conciliator or Expert concerned within five (5) calendar days of appointment. In this case the Dispute resolution service provider may, in consideration of the circumstances of the individual case, determine that the replaced Conciliator or Expert be paid all or part of the Conciliator's or Expert's share of the fee in accordance with the Dispute resolution service provider's schedule of fees. The parties shall bear the additional costs caused thereby in equal shares, unless they have agreed a different division of these additional costs.
6.Communications and periods of time
(a) The request shall be sent by the Dispute resolution service provider to all postal and fax addresses and also, if available in electronic form, to all e-mail addresses which
have been communicated to the Dispute resolution service provider by the Registry regarding the holder of the disputed domain name, or
have been communicated to the Dispute resolution service provider by the Claimant or the Respondent as the Holder's contact details.
(b) All other written communications relating to the proceedings shall be made by e-mail as far as possible.
(c) Each party may update its contact details by communication to the other party, the Dispute resolution service provider and the Registry. As far as Registry changes to the contact details are concerned, its GTC and the formal requirements provided for therein shall apply.
(d) Except as otherwise provided in these Rules of procedure or in an Expert's decision, all communications provided for in these Rules of procedure shall be deemed to have been made on the date which in the case of transmission
by fax is specified on the confirmation of transmission,
by post or courier service is entered on the acknowledgement of receipt,
by e-mail is the demonstrable date of transmission.
(e) Except as otherwise provided in these Rules of procedure, all periods of time which are triggered by a communication according to these Rules of procedure commence at the earliest date of transmission determined according to the provisions of sub-paragraph (d).
(f) In special cases the Dispute resolution service provider, or, during the term of his appointment, a Conciliator or Expert, may extend the periods of time laid down in these Rules of procedure for a limited period on justified application by one party or at his own discretion.
(g) All communications
from a Conciliator or an Expert to a party shall also be communicated to the Dispute resolution service provider and the other party,
from the Dispute resolution service provider to a party shall also be communicated to the other party and, for the term of his appointment, to the Conciliator or Expert,
from one party shall be communicated to the Dispute resolution service provider as well as, after the commencement of the Dispute resolution proceedings, to the other party and, for the term of his appointment, to the Conciliator or Expert.
7.Language of the proceedings
(a) The proceedings shall be conducted in the language of the Registration agreement, without prejudice to the authority of the Dispute resolution service provider, a Conciliator or an Expert, exceptionally to determine otherwise on application by one or both parties or at their own discretion in view of the circumstances of the Dispute resolution proceedings. The language of the Registration agreement may be determined from the Whois service of the Registry.
(b) Documents submitted as evidence which are in a language other than the language of the proceedings may be submitted in the original language. The Dispute resolution service provider, Conciliator or Expert may order the submission of a full or partial translation of such documents into the language of the proceedings at the expense of the party concerned.
8.Suspension of the proceedings
On justified application from the Claimant, the Dispute resolution service provider or, during the term of his appointment, the Conciliator or Expert may suspend the Dispute resolution proceedings for a limited period. Resumption shall take place on application from the Claimant or ex officio by the Dispute resolution service provider or, during the term of his appointment, the Conciliator or Expert. The domain name shall remain blocked for the duration of the suspension.
9.Unnecessary or impossible continuation of the proceedings
If continuation of the Dispute resolution proceedings becomes unnecessary or impossible for any reason before a decision is rendered, the Dispute resolution service provider or, during the term of his appointment, the Conciliator or Expert, shall terminate the Dispute resolution proceedings, unless a party raises justified objections within a period stipulated by the Dispute resolution service provider, the Conciliator or the Expert.
10.Court proceedings
(a) These Rules of procedure do not prevent the parties from submitting the dispute to a competent court of justice for independent decision.
(b) A party, which initiates court proceedings in the same matter during Dispute resolution proceedings, shall promptly notify the Dispute resolution service provider.
(c) If court proceedings are initiated before or during Dispute resolution proceedings, the Dispute resolution service provider or, during the term of his appointment, the Conciliator or Expert shall have the discretion to decide whether to suspend, terminate or continue the Dispute resolution proceedings.
11.Fees
(a) The Claimant shall bear the fees of the Dispute resolution proceedings laid down in the Dispute resolution service provider's schedule of fees, except as otherwise provided in paragraph 5(d), 11(d), 17(d) or 22. If a Conciliator or Expert is not appointed, the Dispute resolution service provider shall refund to the Claimant a part of the fee paid by him as specified in the Dispute resolution service provider's schedule of fees.
(b) The Dispute resolution service provider is not obliged to take any action before it receives the fees laid down in its schedule of fees.
(c) If the Dispute resolution service provider does not receive the fees within ten (10) calendar days after receipt of the request, or, in the case of the fees due for the Expert decision, within ten (10) calendar days of receipt of the continuation application according to paragraph 19(ii), the request shall be deemed to have been withdrawn and the Dispute resolution service provider shall declare the Dispute resolution proceedings terminated.
(d) In special and justified cases, the Dispute resolution service provider may demand the payment of additional fees from one or both parties. Paragraphs 5(c), 17(d) and 22 remain unaffected by this.
II.Conduct of the proceedings
A.Request and response
12.Request
(a) The Dispute resolution proceedings are initiated by the submission of a request to the Dispute resolution service provider in accordance with these Rules of procedure.
(b) The request shall be submitted to the Dispute resolution service provider in written form in four copies as well as in electronic form (with the exception of appendices not available in this form) and shall include the following information:
the disputed domain name,
the names and contact details of the Claimant,
if the Claimant is represented in the Dispute resolution proceedings, the names cpr144449003101 and contact details of the representative and a corresponding power of attorney,
the name of the Respondent as well as all contact details of the Respondent known to the Claimant and of any representative of the Respondent in sufficient detail to allow the Dispute resolution service provider to send the request as described in paragraph 6(a),
the remedy requested, i.e. a declaration as to whether the Claimant requests the transfer or deletion of the disputed domain name,
a justification of why the registration or use of the domain name by the Respondent constitutes an infringement of a Right in a distinctive sign which the Claimant owns under the law of Switzerland or Liechtenstein (this part of the request shall be limited to a maximum of 5000 words),
a statement concerning any court proceedings which were or continue to be pending with regard to the disputed domain name,
a confirmation that the Claimant has arranged for payment to the Dispute resolution service provider of the fees due in accordance with paragraph 11 and the schedule of fees,
the following concluding statements, followed by the signature of the Claimant or his authorised representative:
the names and contact details of the Claimant,
if the Claimant is represented in the Dispute resolution proceedings, the names cpr144449003101 and contact details of the representative and a corresponding power of attorney,
the name of the Respondent as well as all contact details of the Respondent known to the Claimant and of any representative of the Respondent in sufficient detail to allow the Dispute resolution service provider to send the request as described in paragraph 6(a),
the remedy requested, i.e. a declaration as to whether the Claimant requests the transfer or deletion of the disputed domain name,
a justification of why the registration or use of the domain name by the Respondent constitutes an infringement of a Right in a distinctive sign which the Claimant owns under the law of Switzerland or Liechtenstein (this part of the request shall be limited to a maximum of 5000 words),
a statement concerning any court proceedings which were or continue to be pending with regard to the disputed domain name,
a confirmation that the Claimant has arranged for payment to the Dispute resolution service provider of the fees due in accordance with paragraph 11 and the schedule of fees,
the following concluding statements, followed by the signature of the Claimant or his authorised representative:
"The Claimant states that his claims and rights pertaining to registration or use of the domain name, the Dispute resolution proceedings or their completion are directed solely against the Holder and waives all such claims against the Registry or the Dispute resolution service provider, as well as its institutions, board members, employees and representatives, as well as against Conciliators and Experts appointed by the Dispute resolution service provider, in so far as these claims are not based on intentional or grossly negligent misconduct."
"The Claimant states that to its knowledge the information contained in this request is complete and accurate, and that this request is not being submitted abusively."
(c) If the Claimant applies for the appointment of an Expert, if no Conciliation takes place or, if Conciliation does take place but does not lead to a settlement, the request shall include the following complementary information in addition to the information listed in sub-paragraph (b):
the application to appoint an Expert, if no Conciliation takes place or, if Conciliation does take place, but has not led to a settlement,
a declaration that, with regard to any court proceedings initiated by the Respondent against a decision ordering the transfer or deletion of the domain name, the Claimant submits to the jurisdiction of the courts of Zürich.
(d) Documents and other evidence, particularly with reference to the Right in a distinctive sign claimed with regard to the domain name shall be appended to the request together with a schedule indexing such evidence.
(e) The request may relate to more than one domain name provided that all domain names are registered for the same Respondent.
13.Blocking of the domain name
(a) The Dispute resolution service provider shall notify the Registry immediately upon its receipt of the request Dispute resolution service provider.
(b) The Registry shall block the disputed domain name immediately after receipt of this notification for the duration of the Dispute resolution proceedings, as well as, where applicable according to paragraph 26(c), beyond the Dispute resolution proceedings.
(c) The effect of blocking a domain name is governed by the Registry's General Terms and Conditions.
14.Transmission of the request
(a) The Dispute resolution service provider shall review the request for compliance with the formal requirements of these Rules of procedure. A formally correct request shall be transmitted by the Dispute resolution service provider to the Respondent in the manner indicated in paragraph 6(a), if possible within three (3) working days (as observed at the Dispute resolution service provider's place of business) after receipt of the fees paid by the Claimant as per paragraph 11 and the Dispute resolution service provider's schedule of fees.
(b) If the request does not meet the formal requirements of these Rules of procedure, the Dispute resolution service provider shall promptly inform the Claimant of the type of deficiencies identified and shall request the Claimant to rectify the deficiencies within five (5) calendar days. If the Claimant does not rectify the deficiencies, upon expiry of the deadline the request shall be deemed to have been withdrawn and the Dispute resolution service provider shall declare the Dispute resolution proceedings terminated. The Claimant is free to submit a further request relating to the same matter.
(c) The date of commencement of the Dispute resolution proceedings shall be the date on which the Dispute resolution service provider transmits the request to the Respondent in accordance with paragraph 6(a).
(d) The Dispute resolution service provider shall inform the Claimant, the Respondent and the Registry of the date of commencement of the Dispute resolution proceedings.
15.Response
(a) The Respondent shall submit a response to the Dispute resolution service provider within twenty (20) calendar days of the date of commencement of the Dispute resolution proceedings, determined in accordance with paragraph 14(c).
(b) The response shall be submitted in written form in four copies and in electronic form (with the exception of documents not available in this form) and shall contain the following information:
a response to the statements and allegations contained in the request including a defence of why the disputed domain name should remain with the Respondent (this part of the response shall be limited to a maximum of 5000 words),
the names and contact details of the Respondent,
if the Respondent is represented in the Dispute resolution proceedings, the names and contact details of the representative and a corresponding power of attorney,
a declaration of any court proceedings which were or continue to be pending with regard to the disputed domain name,
the following concluding statements, followed by the signature of the Respondent or his authorised representative:
the names and contact details of the Respondent,
if the Respondent is represented in the Dispute resolution proceedings, the names and contact details of the representative and a corresponding power of attorney,
a declaration of any court proceedings which were or continue to be pending with regard to the disputed domain name,
the following concluding statements, followed by the signature of the Respondent or his authorised representative:
"The Respondent states that to its knowledge the information contained in this response is complete and accurate, and that this response is not being submitted abusively."
(c) The response shall be accompanied by documents and evidence on which the Respondent relies, together with a schedule indexing such evidence.
(d) If the Respondent does not submit a response within the period specified in sub-paragraph (a) and also does not otherwise express his readiness to participate in a Conciliation procedure, the Dispute resolution service provider shall declare the Dispute resolution proceedings terminated, unless the Claimant has made an application for the appointment of an Expert according to paragraph 12(c). If the Claimant has made such an application, the Dispute resolution service provider shall inform the parties and give the Claimant an opportunity to apply for the continuation of the proceedings in accordance with paragraph 19.
B.Conciliation
16.Appointment of the Conciliator
(a) If the Respondent has submitted a response within the period specified in paragraph 15(a) or has otherwise indicated its readiness to participate in a Conciliation procedure, the Dispute resolution service provider shall appoint a single Conciliator from its list, taking into account availability, the qualifications required in the individual case and any agreement between the parties.
(b) The appointment shall be made if possible within five (5) working days (Dispute resolution service provider as observed at the Dispute resolution service provider's place of business) of receipt of the response or on expiry of the period specified for its submission.
(c) A Conciliator shall not be appointed as an Expert within the same Dispute resolution proceedings, unless the parties have requested such an appointment by agreement and in writing.
17.Conciliation conference
(a) After the appointment of the Conciliator, the Dispute resolution service provider shall send the Conciliator the case file, inform the parties of the name of the Conciliator and set the time of the Conciliation conference in consultation with the Conciliator.
(b) The Conciliation conference shall take place within twenty (20) calendar days of the appointment of the Conciliator, except in extraordinary circumstances. If no Conciliation conference takes place within this period, the Dispute resolution service provider shall terminate the Dispute resolution proceedings, unless the Claimant has submitted an application for the appointment of an Expert according to paragraph 12(c). If the Claimant has made such an application, the Dispute resolution service provider shall inform the parties and give the Claimant an opportunity to apply for continuation of the proceedings in accordance with paragraph 19.
(c) The Conciliator shall promote the settlement of the dispute between the parties in a manner which he deems appropriate subject to compliance with these Rules of procedure. However, he shall have no authority to impose a specific result on the parties.
(d) The Conciliation conference takes place in the form of a telephone conference between the Conciliator and the parties lasting a maximum of one hour. If the parties by agreement wish to continue the Conciliation beyond this, they shall bear the resulting extra costs in equal shares, unless they have agreed a different division of these extra costs. The Conciliator shall inform the Dispute resolution service provider of such a continuation of the Conciliation and shall suspend the Dispute resolution proceedings in accordance with paragraph 8.
(e) Unless the parties have agreed otherwise, the Conciliator and the parties are obliged to respect the confidentiality of the Conciliation conference. In particular, they shall not use or disclose any non-public information which they have acquired in the course of the Conciliation conference.
18.Conclusion of the Conciliation conference
(a) The Conciliator shall promptly inform the Dispute resolution service provider of the conduct of the Conciliation conference and its outcome. The Conciliator shall record any settlement reached between the parties in a brief document and shall send one copy of this document to each of the parties. Each party shall send the dispute resolution service provider a signed copy of this document within ten (10) calendar days. Alternatively, within this period, a copy signed by both parties may be sent.
(b) If it receives the signatures of both parties within the deadline on one or more copies of the document which records a settlement, the Dispute resolution service provider shall furnish each party with one copy of the document signed by the other party and shall declare the Dispute resolution proceedings terminated. Otherwise, or if no agreement has been reached between the parties, the Dispute resolution service provider shall declare the Dispute resolution proceedings terminated, unless the Claimant has made an application for the appointment of an Expert in accordance with paragraph 12(c). If the Claimant has made such an application, the Dispute resolution service provider shall inform the parties and give the Claimant an opportunity to apply for continuation of the proceedings in accordance with paragraph 19.
C.Expert's decision
19.Continuation of the proceedings
The Dispute resolution proceedings shall be continued if the Claimant
has applied in the request for the appointment of an Expert according to paragraph 12(c), and
has made an application within ten (10) calendar days of the notification according to paragraph 15(d), 17(b), or 18(b) for the continuation of the Dispute resolution proceedings, and
has arranged within the period specified in sub-paragraph (ii) for the payment of the corresponding fees as per paragraph 11 and the schedule of fees.
has made an application within ten (10) calendar days of the notification according to paragraph 15(d), 17(b), or 18(b) for the continuation of the Dispute resolution proceedings, and
has arranged within the period specified in sub-paragraph (ii) for the payment of the corresponding fees as per paragraph 11 and the schedule of fees.
20.Appointment of the Expert
(a) If the Dispute resolution proceedings are continued in accordance with paragraph 19, the Dispute resolution service provider shall appoint a single Expert from its list, taking into account availability, the qualifications required in the individual case and any agreement between the parties.
(b) If possible, the appointment shall take place within five (5) working days (as observed at the Dispute resolution service provider's principal place of business) of the date on which the prerequisites in paragraph 19 for the continuation of the dispute resolution procedure are fulfilled.
(c) After the appointment of the Expert, the Dispute resolution service provider shall send the Expert the case file and inform the parties of the name of the Expert.
21.General powers of the Expert
(a) The Expert shall conduct the dispute resolution procedure in the manner he deems appropriate, in compliance with these Rules of procedure. He shall ensure that the parties are treated equally and that each party has an opportunity to properly present its case in accordance with the Rules of procedure.
(b) The Expert shall determine the admissibility, relevance, materiality and weight of the evidence.
(c) At his discretion the Expert may request further statements or documents in addition to the request and the response or accept such further statements or documents on justified application by one party.
22.In-Person Hearings
With the exception of the Conciliation conference described in paragraph 17 there shall be no in-person hearings (including telephone, video or Internet conferences), unless a party has applied for such an in-person hearing to take place. In this case the party concerned shall bear the extra costs due to the in-person hearing, unless, by way of exception, the Expert orders for such costs to be split.
23.Default
(a) If a party without due cause fails to comply with the time periods laid down in these Rules of procedure or specified by the Expert, the Expert shall decide on the request on the basis of the case file. Paragraphs 11(c) and 14(b) remain unaffected.
(b) If one party without due cause fails to comply with a provision of these Rules of procedure or an instruction issued by the Expert, the Expert may draw such inferences therefrom as he considers appropriate.
24.Decision
(a) The Expert shall decide on the request on the basis of the pleadings of both parties and the submitted documents in conformity with these Rules of procedure.
(b) The Expert may only order the deletion or transfer of the domain name, depending on the remedy requested in the request, or reject the request.
(c) The Expert shall grant the request if the registration or use of the domain name constitutes a clear infringement of a right in a distinctive sign which the Claimant owns under the law of Switzerland or Liechtenstein.
(d) In particular, a clear infringement of an intellectual property right exists when
both the existence and the infringement of the claimed Right in a distinctive sign clearly result from the wording of the law or from an acknowledged interpretation of the law and from the presented facts and are proven by the evidence submitted; and
the Respondent has not conclusively pleaded and proven any relevant grounds for defence; and
the infringement of the right justifies the transfer or deletion of the domain name, depending on the remedy requested in the request.
the Respondent has not conclusively pleaded and proven any relevant grounds for defence; and
the infringement of the right justifies the transfer or deletion of the domain name, depending on the remedy requested in the request.
(e) The decision shall be issued in writing, be briefly substantiated and indicate its date of issue and the name of the Expert.
(f) The Expert shall ensure that the Dispute resolution proceedings proceed with due expedition. In so far as no special circumstances apply, the Expert shall communicate his decision to the Dispute resolution service provider within fourteen (14) calendar days of his appointment, signed in three copies and in electronic form.
25.Communication and publication of the decision
(a) The Dispute resolution service provider shall transmit one signed written copy of the decision to each party, and an electronic version of the decision to the parties and to the Registry.
(b) All decisions made in accordance with these Rules of procedure shall be published unabridged on the Internet, unless the Expert exceptionally excludes part of his decision from publication.
26.Implementation of the decision
(a) Apart from the case provided for in sub-paragraph (b), a decision ordering the deletion or transfer of the disputed domain name shall be implemented by the Registry upon expiry of a period of twenty (20) working days (as observed in the City of Zürich) from the date of transmission of the electronic version of the decision to the parties and the Registry.
(b) If within this period of twenty (20) working days the Respondent sends the Registry an official document concerning the initiation of court proceedings in the jurisdiction to which the Claimant has submitted in accordance with paragraph 12(c)(ii) of these Rules of procedure, the Registry shall not implement the decision until the Registry receives proof, which it considers adequate, of the rejection, dismissal or withdrawal of the court proceedings.
(c) Until the implementation of the decision, or until the definitive termination of court proceedings according to sub-paragraph (b), the domain name shall remain blocked.
III.Concluding provisions
27.Exclusion of liability
Except in cases of intentional or grossly negligent misconduct, the Dispute resolution service provider, the Registry, a Conciliator or an Expert shall not be liable to the parties for acts and omissions in connection with Dispute resolution proceedings under these Rules of procedure.
28.Language versions and amendments to the Rules of procedure
(a) These Rules of procedure are equally binding in the German, English, French and Italian version. However, in the event of discrepancies between these language versions the German version shall take precedence.
(b) The Registry may amend these Rules of procedure at any time after consultation with the Dispute resolution service provider.
(c) Amendments shall enter into force upon expiry of thirty (30) calendar days after the publication of the amended version of these Rules of procedure on the Registry's website. The version applicable to Dispute resolution proceedings is the one in force at the time of submission of the request to the Dispute resolution service provider.
