.com.kz Domains Dispute & Policy
Last Update 20 August 2012. The most recent source for .com.kz domains dispute policy can be found at: www.nic.kz/rules/policy.jsp
KZ DOMAIN NAME DISPUTE POLICY
Revision 01
Effective January 1, 2000
1. KazNIC Organization ("KazNIC") is responsible for the registration of second-level Internet domain names in the top level KZ domain. KazNIC registers these second-level domain names on a "first come, first served" basis. By registering a domain name, KazNIC does not determine the legality of the domain name registration, or otherwise evaluate whether that registration or use may infringe upon the rights of a third party.
2. The entity applying for a domain name ("registrant") is solely responsible for selecting its own domain name ("domain name") and maintaining for the continued accuracy of the registration record. The registrant, by completing and submitting the Domain Name Registration Agreement ("Registration Agreement"), represents that the statements in its application are true and that the registration of the selected domain name, to the best of the registrant's knowledge, does not interfere with or infringe upon the rights of any third party. The registrant also represents that the domain name is not being registered for any unlawful purpose.
3. KazNIC neither acts as arbiter nor provides resolution of disputes between registrants and third party complainants arising out of the registration or use of a domain name. This Domain Name Dispute Policy ("Policy") does not confer any rights, procedural or substantive, upon third party complainants. Likewise, complainants are not obligated to use this Policy.
4. This Policy does not limit the administrative or legal procedures KazNIC may use when third party conflicts arise, or when KazNIC is presented with information that a domain name violates the legal rights of a third party, including, but not limited to, information that the display or use of the domain name is expressly prohibited by a Kazakstani legislation or International regulations.
5. Modifications. The registrant acknowledges and agrees that KazNIC may modify or amend this Policy from time to time, and that such changes are binding upon the registrant. KazNIC will post the revised Policy at
http://nic.kz/rules/policy.jsp
at least thirty (30) calendar days before it becomes effective.6. Indemnity. The registrant hereby agrees to defend, indemnify and hold harmless (i) KazNIC, its officers, directors, employees and agents, and (ii) the Ministry of Transport and Communications ("MTC"), its officers, directors, and employees (collectively, the "Indemnified Parties"), for any loss or damages awarded by a court of competent jurisdiction resulting from any claim, action, or demand arising out of or related to the registration or use of the domain name. Such claims shall include, without limitation, those based upon trademark or service mark infringement, tradename infringement, dilution, tortious interference with contract or prospective business advantage, unfair competition, defamation or injury to business reputation. Each Indemnified Party shall send written notice to the registrant of any such claim, action, or demand against that party within a reasonable time. The failure of any Indemnified Party to give the appropriate notice shall not affect the rights of the other Indemnified Party. KazNIC recognizes that certain educational and governmental entities may not be able to provide complete indemnification. If the registrant is (i) a governmental or non-profit educational entity, and (ii) not permitted by law or under its organizational documents to provide indemnification, the registrant must notify KazNIC in writing and, upon receiving appropriate proof of such restriction, KazNIC may provide an alternative provision for such a registrant.
7. Revocation. The registrant agrees that KazNIC shall have the right in its sole discretion to revoke, suspend, transfer or otherwise modify a domain name registration upon thirty (30) calendar days prior written notice, or at such time as KazNIC receives a properly authenticated order from a court of competent jurisdiction, or arbitration award, requiring the revocation, suspension, transfer or modification of the domain name registration.
8. Dispute Initiation. Registrant agrees that while KazNIC can neither act as an arbiter nor provide resolution of disputes arising out of the registration and use of a domain name, KazNIC may be presented with information that a domain name possibly violates the trademark rights of a trademark owner. KazNIC may apply the procedures described in Section 9 when a third party complainant ("complainant") presents KazNIC with satisfactory evidence of both trademark ownership and written notice to the domain name registrant describing the legal harm the trademark owner is incurring. The documents required in support of a complainant's written request that KazNIC invoke Section 9, Dispute Procedures, must include:
(a) An original, certified copy, not more than six (6) months old, of a trademark registration ("certified registration"), which is in full force and effect and is identical to a second-level domain name (i.e., not including KZ) on the principal or equivalent registry of any country (copies certified in accordance with 37 CFR 2.33(a)(1)(viii) or its successor will meet this standard for registrations in jurisdictions other than the United States). Trademark or service mark registrations from the supplemental or equivalent registry of any country, or from individual states or provinces of a nation, will not be accepted. Trademarks incorporating a design will not be accepted; and
(b) A copy of the written prior notice sent to the domain name registrant by the complainant, and a representation by the complainant indicating the mode of delivery of the notice (e.g., first class mail, overnight delivery) and the factual basis for believing that the domain name registrant received the notice. Notices must be sent to the mailing address of the domain name registrant as provided in KazNIC' WHOIS database. The notice to the domain name registrant must clearly state that the complainant believes the registration and use of the disputed domain name violates the trademark rights of the complainant; the notice must also clearly allege the factual and legal bases for the belief. KazNIC will not undertake any separate investigation of the statements in such notice.
9. Dispute Procedures. In those instances where a third party claim is based upon and complies with Section 8(a and b), KazNIC may apply the following procedures, which recognize that trademark ownership does not automatically extend to the right to register a domain name and which reflect no opinion on the part of KazNIC concerning the ultimate determination of the claim:
(a) KazNIC shall determine the creation date of the registrant's domain name registration ("domain name creation date").
(b) If the registrant's domain name creation date precedes the effective date of the valid and subsisting certified registration owned by the complainant, KazNIC will take no action on the complainant's request.
(c) If the domain name creation date is after the effective date of the valid and subsisting certified registration owned by the complainant, then KazNIC shall request from the registrant proof of ownership of registrant's own registered trademark or service mark by submission of a certified registration, of the type and nature specified in Section 8(a) above. The certified registration must be owned by the registrant and the effective date must be prior to the date of any third party's notice of a dispute to the registrant. If the registrant satisfies the requirements of this Section 9(c), KazNIC will take no further action on the complainant's request.
(d) If the domain name creation date is after the effective date of the valid and subsisting certified registration owned by the complainant, and the registrant fails to provide a certified registration as specified in Section 8(a) to KazNIC within thirty (30) calendar days of receipt of KazNIC' dispute notification letter, KazNIC will assist the registrant with registration of a new domain name, and will allow the registrant to maintain both names simultaneously for up to ninety (90) calendar days to allow an orderly transition to the new domain name. KazNIC will provide such assistance to a registrant if and only if, within thirty (30) calendar days of receipt of cpr144449003101 KazNIC dispute notification letter, the registrant (1) submits a Registration Agreement requesting the registration of a new domain name; and (2) submits an explicit written request to KazNIC' Office, including an identification of the registrant's desired new domain name and the NIC tracking number (for example, KZ-981125.1234) assigned by KazNIC in response to the new Registration Agreement. At the end of the ninety (90) calendar day period of simultaneous use, KazNIC will place the disputed domain name on "Hold" status, pending resolution of the dispute. As long as a domain name is on "Hold" status, that domain name registered to the registrant shall not be available for use by any party.
(e) In the event the registrant fails to select one of the following options by a written response, received by KazNIC within thirty (30) calendar days of receipt of KazNIC' dispute notification letter, KazNIC will place the domain name on "Hold" (wherein the domain name will not be available for use by any party) pending resolution of the dispute:
(1) Provide the documentation required by Section 9(c) of this Policy,
(2) Relinquish the domain name and transfer it to the complainant,
(3) Register a new and different domain name pursuant to Section 9(d) of this Policy, or
(4) File a civil action and provide a copy of a file-stamped complaint pursuant to Section 10 of this Policy.
(f) KazNIC will reinstate the domain name placed in "Hold" status, or will not place it in "Hold" status, (i) upon receiving a properly authenticated temporary or final order by a court of competent jurisdiction, or arbitration award, stating which party to the dispute is entitled to the domain name, (ii) if KazNIC receives other satisfactory evidence from the parties of the resolution of the dispute, or (iii) the complainant requests that the domain name not be placed on "Hold".
(g) A domain name registrant involved in Dispute Procedures remains subject to the terms and conditions of the Registration Agreement, including fees.
10. Litigation. Independent of the provisions of Section 9 of the Policy, in the event that:
(a) The registrant files a civil action related to the registration and use of the domain name against the complainant in a court of competent jurisdiction, and provides KazNIC with a copy of the file-stamped complaint, KazNIC will maintain the status quo ante of the domain name record pending a temporary or final decision of the court. For example, if the domain name is not on "Hold," it will not be placed on "Hold;" if the domain name is already on "Hold", it will remain on "Hold." In such cases, KazNIC will deposit control of the domain name into the registry of the court by supplying the registrant with the registry certificate for deposit. While the domain name is in the registry of the court, KazNIC will not make any changes to the domain name record unless ordered by the court. The registrant also shall promptly provide copies of any and all pleadings filed in the action to KazNIC upon KazNIC request.
(b) The complainant files a civil action related to the registration and use of the domain name against the registrant in a court of competent jurisdiction, and provides KazNIC with a copy of the file-stamped complaint, KazNIC will maintain the status quo ante of the domain name record pending a temporary or final decision of the court. For example, if the domain name is not on "Hold," it will not be placed on "Hold;" if the domain name is already on "Hold", it will remain on "Hold." KazNIC will deposit control of the domain name into the registry of the court by supplying the complainant with the registry certificate for deposit. While the domain name is in the registry of the court, KazNIC will not make any changes to the domain name record unless ordered by the court.
(c) In both instances, under Section 10(a and b), KazNIC will abide by those provisions of temporary or final court orders, or arbitration awards, directing the disposition of the domain name, without being named as a party to the civil action. The civil action must include the domain name registrant as a party. If named as a party to a civil action, KazNIC shall not be limited to the above actions, but reserves the right to raise any and all defenses deemed appropriate, and to take any other action necessary to defend itself.
(d) A domain name registrant involved in Litigation remains subject to the terms and conditions of the Registration Agreement, including fees.
11. DISCLAIMER. THE REGISTRANT AGREES THAT KAZNIC WILL NOT BE LIABLE FOR ANY LOSS OF REGISTRATION AND USE OF REGISTRANT'S DOMAIN NAME, OR FOR INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF KAZNIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL KAZNIC' MAXIMUM LIABILITY EXCEED FIVE HUNDRED ($500.00) US DOLLARS.
12. Notices. All notices between Network Solutions and its registrants permitted or required under this Policy shall be in writing and shall be delivered by personal delivery, courier delivery, facsimile transmission, and/or by first class mail, and shall be deemed given upon delivery, transmission, or seven (7) calendar days after deposit in the mail, whichever occurs first. Initial notices shall be sent to the domain name registrant at the address of the domain name registrant listed in KazNIC WHOIS database.
13. Non-Agency. Nothing contained in this Policy shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
14. Non-Waiver. The failure of KazNIC to require performance by the registrant of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by KazNIC of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
15. Breach. The registrant's failure to abide by any provision under this Policy may be considered by KazNIC to be a material breach and KazNIC may provide a written notice, describing the breach, to the registrant. If, within thirty (30) calendar days of the date of such notice, the registrant fails to provide evidence, which is reasonably satisfactory to KazNIC, that it has not breached its obligations, then KazNIC may revoke registrant's registration of the domain name. Any such breach by a registrant shall not be deemed to have been excused simply because KazNIC did not act earlier in response to that, or any other, breach by the registrant.
16. Invalidity. In the event that any provision of this Policy shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Policy unenforceable or invalid as a whole. KazNIC will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of KazNIC as reflected in the original provision.
17. Entirety. This Policy, as amended, and the current Registration Agreement together constitute the complete and exclusive agreement between KazNIC and the registrant, and supersede and govern all prior proposals, agreements, or other communications. The registrant agrees that registration of a domain name constitutes an agreement to be bound by this Policy, as amended from time to time.
