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Resolution
of Internet Domain Name Disputes
Disputes arising from registration or use of Internet
domain names can be resolved by judicial, administrative or arbitrational
proceedings.
I. Judicial Resolution
of Domain Name Disputes
Any
institution or person who considers that a registered domain name conflicts
with its legitimate rights or interests may institute legal proceedings
in the people's court.
Legal Basis
The General Principles of Civil Law, the Anti-unfair Competition Law
and the Trademark Law provide the basis for the resolution of the disputes
arising from registration or use of domain names.
The Supreme People's Court issued the Interpretations of Several Issues
Relating to the Application of Law in Adjudication of Cases of Civil
Disputes over Domain Names on June 26, 2001 and it came into force on
July 24, 2001.
Jurisdiction
Domain name disputes are under the jurisdiction of the
intermediate people's court of the place where the defendant has its
domicile or where the infringing act is committed.
Adjudication Principles
According to the Interpretations of Several Issues
Relating to the Application of Law in Adjudication of Cases of Civil
Disputes over Domain Names of the Supreme People's Court, an act of
registration or use of domain name constitutes infringement or unfair
competition, if the following four criteria are satisfied simultaneously:
1. the civil right and interests for which the plaintiff
seeks protection are legitimate and valid;
2. the defendant's domain name or the main part
thereof constitutes the reproduction, imitation, translation or transliteration
of the plaintiff's well-known mark; or so identical with or so similar
to the plaintiff's registered mark or domain name that it creates confusion
on the part of the relevant public;
3. the defendant does not enjoy any right or interest
in the domain name or the main part thereof, nor has any justifiable
reasons for registration or use of the domain name; and
4. the defendant registers and uses the domain
name in bad faith.
According to the same interpretations, "bad faith" is established if
the defendant has done any of the following acts:
1. registering another person's well-known mark as its or his own domain
name for commercial purposes;
2. registering or using, for commercial purposes, a domain name identical
with or similar to the plaintiff's registered mark or domain name, etc.,
intentionally creating such confusion with the product or service the
plaintiff supplies or the website it hosts so as to mislead the network
users to visit its or his website or any other site online;
3. having offered the domain name for sale or rental
at a high price, or assigned it in any other manner to seek unlawful
benefits;
4. neither using nor being prepared to use the
domain name after the registration thereof, but intentionally preventing
the right holder from registering it; or
5. acting in any other manner in bad faith.
Where the defendant furnishes evidence that it or he has acquired some
reputation for the domain name before the dispute arose and that the
domain name is distinct from the mark or domain name the plaintiff has
registered, or there exists any other circumstance showing that it or
he has not acted in bad faith, the people's court may determine that
the defendant has not acted in bad faith.
When trying a case of domain name dispute, the court may recognize a
mark involved as a well-known mark upon the request of the parties or
depending on the specific circumstances of the case.
Judgment
Where infringement or unfair competition is found, the
court may order the defendant to cease using the domain name and cancel
the domain name registration. Alternatively, the court may order the
defendant to transfer the domain name to the plaintiff. Where actual
losses were caused, the defendant shall pay damages to the plaintiff.
II. Administrative Resolution of Domain
Name Disputes
Any institution
or person who considers that a registered domain name conflicts with
the legitimate rights or interests of that institution or person may
file a complaint with any of the domain name dispute resolution providers.
Dispute Resolution
Service Providers
Currently,
there are two non-governmental institutions authorized by the China
Internet Network Information Center (CNNIC) as domain name dispute resolution
service providers. They are:
The Domain Name Dispute Resolution Center of China
International Economic and Trade Arbitration Commission (CIETAC) (CIETAC
Domain Name Dispute Resolution Center) in Beijing; and
The Hong Kong International Arbitration Center
(HKIAC) located in Hong Kong.
Legal Basis
Domain
Name Dispute Resolution Policy promulgated by the China Internet Network
Information Center, which was adopted on September 30, 2002, is made
a part of the Registration Agreement between the domain name holder
and the domain name registrar.
The China Internet Network Information Center promulgated Rules for
Domain Name Dispute Resolution Policy, which was adopted on September
30, 2002, and the China International Economic and Trade Arbitration
Commission provided Supplemental Rules for Domain Name Dispute Resolution
Policy.
Jurisdiction
Disputes arising from registration or use of domain names
under the administration of the China Internet Network Information Center
can be resolved by administrative proceedings. Currently, such domain
names refer to those ending with CN, country code top level domain of
China, and Chinese domain names, namely domain names using Chinese characters.
Dispute Resolution Procedures
The
domain name dispute resolution service providers shall implement a system
whereby panels of experts are responsible for the resolution of disputes.
The panels are composed of one or three experts as the panelists. The
list of the panelists shall be available on line, and the complainants
and the respondents may select the panelists therefrom. The panelists
shall be independent and impartial throughout the whole administrative
proceedings and have no material interests with the party of either
side.
The procedures of the CIETAC Domain Name Dispute Resolution Center are
as follows:
1. the complainant files a complaint with the CIETAC Domain Name Dispute
Resolution Center;
2. the CIETAC Domain Name Dispute Resolution Center notifies the registered
holder of the domain name in question and sends a copy of the complaint
to the registered holder;
3. the registered holder of the domain name files a response;
4. the CIETAC Domain Name Dispute Resolution Center selects the panel
of one or three, which will conduct the administrative proceeding and
make a decision;
5. the panel renders its decision; and
6. if the decision of the panel requires that the domain name in question
be cancelled or transferred, the decision is enforced.
Adjudication Principles
According to the Domain Name Dispute Resolution Policy,
a complaint against a registered domain name shall be supported if it
meets the following three conditions:
1. the disputed domain name is identical with or confusingly similar
to the name or mark of the complainant in which the complaint has civil
rights or interests;
2. the holder of the disputed domain name has no right or legitimate
interest in respect of the domain name or major part of the domain name;
and
3. the holder of the disputed domain name has registered or used the
domain name in bad faith.
According to the same policy, "bad faith" is established in any one
of the following circumstances:
1. the disputed domain name holder has registered or acquired the domain
name for the purpose of selling, renting or otherwise transferring the
domain name to seek illicit benefits;
2. the disputed domain name holder repeatedly registered a name or mark
in which another person enjoys legitimate rights and interests as his
own domain name to prevent that person from using said domain name as
such on the Internet;
3. the disputed domain name holder has registered or acquired the domain
name for the purpose of damaging the complainant's reputation, disrupting
the complainant's normal business or creating confusion with the complainant's
name or mark so as to mislead the public; or
4. other circumstances which may prove bad faith.
Decisions
If the panel concludes that the dispute is not within
it's jurisdiction, it shall so state.
If after considering the submissions the panel finds that the complaint
was brought in bad faith, the panel may declare in its decision that
the complaint constitutes an abuse of the domain name dispute resolution
procedure.
Where the panel supports the complaint, the registered domain name shall
be cancelled or transferred to the complainant.
Where the panel does not support the complaint, the complaint shall
be rejected.
The panel may not make money awards nor awards relating to costs, including
without limitation, lawyer's fees and costs.
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Selection of Dispute Resolution Routes
Before
a complaint is filed with a CNNIC-authorized domain name dispute resolution
service provider, or during the administrative proceedings, or after
the panel has rendered its decision, either party to the dispute may
institute a legal action over the same dispute with the court having
the jurisdiction or, submit the dispute to an arbitration institution
for arbitration, if there is such an agreement between the parties.
In
the event of any legal or arbitral proceedings initiated prior to
or during the administrative proceedings, the domain name dispute
resolution service provider or the panel has the discretion to decide
whether to suspend or terminate the administrative proceedings, or
to proceed to a decision.
Where a party to the dispute initiates any legal or
arbitral proceedings during the administrative proceedings, it shall
promptly notify the panel and the domain name dispute resolution service
provider.
Compared with the judicial proceedings, the administrative dispute
resolution mechanism has its obvious advantages. One is prompt handling
and the other is the low cost.
Enforcement
of Decision
If
the panel rules in its decision to cancel the registered domain name
or to transfer it to the complainant, the domain name registrar, before
enforcing the decision, shall wait 10 days calculating from the date
on which the decision is published. If during such waiting period the
respondent submits valid evidence showing that a legal action has lodged
with the judicial authority or an application has been filed with an
arbitration institution, the domain name registrar shall not enforce
the decision. Thereafter, the domain name registrar shall take further
actions as follows:
1.
if there is a proof showing that the parties have reached a settlement,
the registrar shall enforce such settlement;
2. if there is a proof showing that the party that lodged
the legal action or applied for arbitration has withdrawn the complaint
or application, or it has been rejected, the domain name registrar shall
enforce the panel's decision; or
3. if the judicial authority or arbitration institution makes a decision
that is legally effective, the domain name registrar shall enforce such
decision.
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Publication
of Decision
Unless
the panel, at the request of one party or considering the specific situation
of the case, determines otherwise, the decision shall be published on
a publicly accessible website.
III. Arbitrational
Resolution of Domain Name Disputes
If
there is an agreement between the parties to solve their domain name
dispute by an arbitration institution, the dispute shall be submitted
to the arbitration institution.
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