Uniform Username Dispute Resolution Policy (UUDRP)

(As Drafted by GiantPeople LLC on April 26, 2016)

1. Purpose. This Uniform Username Dispute Resolution Policy (the “Policy” or “UUDRP”) was created to provide Service Providers whose services include user-created usernames with a standardized method of resolving disputes regarding which user should have the right to use a particular username. The policy is between the Service Provider and its customer (the username holder) and, as such, uses “we” and “our” to refer to the Service Provider and uses “you” and “your” to refer to the customer. The Policy recognizes that usernames are as important as domain names, recognizes that username squatting is a real problem, and is based on (but does not exactly follow) the Uniform Domain Name Dispute Resolution Policy (“UDRP”) adopted by the Internet Corporation for Assigned Names and Numbers (“ICANN”) and located at <https://www.icann.org/en/help/dndr/udrp/policy>. This Policy is incorporated by reference into your Service Provider’s Terms of Service (“TOS”) and sets forth the terms and conditions in connection with a dispute between you and any party other than us over the creation and use of an Internet username created by you. Proceedings under Paragraph 4 of this Policy will be conducted according to the Rules for Uniform Username Dispute Resolution Policy (the “UUDRP Rules”), which are available at <UUDRP-RULES-URL>.

2. Your Representations. By creating a username, or by asking us to maintain or renew a username, you hereby represent and warrant to us that (a) the statements that you made in your account with us are complete and accurate; (b) to your knowledge, the creating of the username will not infringe upon or otherwise violate the rights of any third party; (c) you are not creating the username for an unlawful purpose; and (d) you will not knowingly use the username in violation of any applicable laws or regulations. It is your responsibility to determine whether your username infringes or violates someone else’s rights.

3. Cancellations, Transfers, and Changes. We will cancel, transfer, or otherwise make changes to a username under the following circumstances:

(a) Your direction. Subject to the provisions of Paragraph 8, our receipt of written or appropriate electronic instructions from you or your authorized agent to take such action;

(b) Court order. Our receipt of an order from a court or arbitral tribunal, in each case of competent jurisdiction, requiring such action; and/or

(c) Administrative Panel decision. Our receipt of a decision of an Administrative Panel requiring such action in any administrative proceeding to which you were a party and which was conducted under this Policy or a later version of this Policy adopted by GiantPeople LLC. (See Paragraph 4(i) and (k) below.)

We may also cancel, transfer or otherwise make changes to a username in accordance with the terms of your TOS or other legal requirements.

4. Mandatory Administrative Proceeding.

This Paragraph sets forth the type of disputes for which you are required to submit to a mandatory administrative proceeding. These proceedings will be conducted before one of the administrative-dispute-resolution service providers listed at <PROVIDERS-URL> (each, a “Provider”).

(a) Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a “Complainant”) asserts to the Service Provider, in compliance with the UUDRP Rules, that

(i) your username is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and you have no rights or legitimate interests in respect of the username; OR

(ii) your username is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and your username has been created and is being used in bad faith.

In the administrative proceeding, the Complainant must prove that the elements of paragraph 4(a)(i) OR paragraph 4(a)(ii) are present.

(b) Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(ii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the creation and use of a username in bad faith:

(i) circumstances indicating that you have created or you have acquired the username primarily for the purpose of selling, renting, or otherwise transferring the username to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the username; or

(ii) you have created the username in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding username, provided that you have engaged in a pattern of such conduct; or

(iii) you have created the username primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the username, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.

(c) How to Demonstrate Your Rights to and Legitimate Interests in the Username in Responding to a Complaint. When you receive a complaint, you should refer to the UUDRP Rules in determining how your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the username for purposes of Paragraph 4(a)(i):

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the username or a name corresponding to the username in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the username, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the username, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

(d) Selection of Provider. The Complainant shall select the Provider from among those approved by GiantPeople LLC by submitting the complaint to that Provider. The selected Provider will administer the proceeding, except in cases of consolidation as described in Paragraph 4(f).

(e) Initiation of Proceeding and Process and Appointment of Administrative Panel. The UUDRP Rules state the process for initiating and conducting a proceeding and for appointing the panel that will decide the dispute (the “Administrative Panel”).

(f) Consolidation. In the event of multiple disputes between you and a Complainant, either you or the Complainant may petition to consolidate the disputes before a single Administrative Panel. This petition shall be made to the first Administrative Panel appointed to hear a pending dispute between the parties. This Administrative Panel may consolidate before it any or all such disputes in its sole discretion, provided that the disputes being consolidated are governed by this Policy or a later version of this Policy adopted by GiantPeople LLC.

(g) Fees. All fees charged by a Provider in connection with any dispute before an Administrative Panel pursuant to this Policy shall be paid by the Complainant, except in cases where you elect to expand the Administrative Panel from one to three panelists as provided in Paragraph 5(b)(iv) of the UUDRP Rules, in which case all fees will be split evenly by you and the Complainant.

(h) Our Involvement in Administrative Proceedings. We do not, and will not, participate in the administration or conduct of any proceeding before an Administrative Panel. In addition, we will not be liable as a result of any decisions rendered by the Administrative Panel.

(i) Remedies. The remedies available to a Complainant pursuant to any proceeding before an Administrative Panel shall be limited to requiring the cancellation of your username or the transfer of your username to the Complainant.

(j) Notification and Publication. The Provider shall notify us of any decision made by an Administrative Panel with respect to a username you have created with us. All decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.

(k) Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you or the Complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that your username should be canceled or transferred, then we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel’s decision before implementing that decision. We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the Complainant in a jurisdiction to which the Complainant has submitted under Paragraph 3(b)(xiii) of the UUDRP Rules. (In general, that jurisdiction is either the location of our principal office or of your address as shown in your account with us. See the UUDRP Rules for details.) If we receive such documentation within the ten (10) business day period, then we will not implement the Administrative Panel’s decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing your lawsuit or ordering that you do not have the right to continue to use your username.

5. All Other Disputes and Litigation. All other disputes between you and any party other than us regarding your username that are not brought pursuant to the mandatory administrative proceeding provisions of Paragraph 4 shall be resolved between you and such other party through any court, arbitration, or other proceeding that may be available.

6. Our Involvement in Disputes. We will not participate in any way in any dispute between you and any party other than us regarding the creation and use of your username. You shall not name us as a party or otherwise include us in any such proceeding. In the event that we are named as a party in any such proceeding, we reserve the right to raise any and all defenses deemed appropriate, and to take any other action necessary to defend ourselves.

7. Maintaining the Status Quo. We will not cancel, transfer, activate, deactivate, or otherwise change the status of any username under this Policy except as provided in Paragraph 3 above.

8. Transfers During a Dispute. You may not transfer your username to another holder (i) during a pending administrative proceeding brought pursuant to Paragraph 4 or for a period of fifteen (15) business days (as observed in the location of our principal place of business) after such proceeding is concluded; or (ii) during a pending court proceeding or arbitration commenced regarding your username unless the party to whom the username is being transferred agrees, in writing, to be bound by the decision of the court or arbitrator. We reserve the right to cancel any transfer of a username to another holder that is made in violation of this paragraph.

9. Policy Modifications. We reserve the right to modify this Policy at any time with the permission of GiantPeople LLC. We will post our revised Policy at <SERVICE-PROVIDER-UUDRP-URL> at least thirty (30) calendar days before it becomes effective. Unless this Policy has already been invoked by the submission of a complaint to a Provider, in which event the version of the Policy in effect at the time it was invoked will apply to you until the dispute is over, all such changes will be binding upon you with respect to any username dispute, whether the dispute arose before, on or after the effective date of our change. In the event that you object to a change in this Policy, your sole remedy is to cancel your username with us, provided that you will not be entitled to a refund of any fees you paid to us. The revised Policy will apply to you until you cancel your username.

END of UUDRP v1

Notes

Note 1.  I spent a couple of hours creating this draft Uniform Username Dispute Resolution Policy (UUDRP), which is essentially the UDRP with “domain name” replaced with “username” (plus a few other changes).  If there is demand, then maybe I’ll supply what’s missing (such as the UUDRP Rules).  But my point is this: It’s really not that difficult to conjure up a fair trademark policy for username disputes.

Note 2.  The main substantive difference between this UUDRP (for usernames) and ICANN’s UDRP (for domain names) is that the UDRP requires a showing of three elements whereas the UUDRP requires a showing of only two.

The UDRP elements are (1) domain name is confusingly similar to Complainant’s trademark, (2) domain name registrant has no legitimate rights, and (3) domain name registrant’s bad faith. As anyone who has undertaken a UDRP complaint will tell you, proving (or even inferring) bad faith can be quite tricky.

Since usernames are easier to create than domain names are to register, and since usernames are typically created at zero cost to the creator while domain names typically cost money to register, we feel that it makes sense for usernames to be easier to recover (by the trademark owner) than domain names. As such, the UUDRP Complainant must show either (1) domain name is confusingly similar to Complainant’s trademark and username creator has no legitimate rights OR (2) domain name is confusingly similar to Complainant’s trademark and username creator’s bad faith.

Note 3.  The OpenOffice version of this UUDRP is here:
2016-04-26-giantpeople-uudrp-v1.odt

Note 4.  The PDF redline version of this UUDRP (compared to the source UDRP document) is here:
2016-04-26-giantpeople-uudrp-v1-redline.pdf

External Links: Social Networks’ Trademark Policies


Erik claims to publish the #1 blog about technology, law, baseball, and rock ‘n’ roll at ErikJHeels.com. Brevity is not his strong suit.

Erik J. Heels