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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 internet 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 competent domain name dispute resolution providers.

CNNIC ccTLD Dispute Resolution Policy (CNDRP) is applicable to disputes result from registration or usage of domain names. The disputed names shall, within the range of “.CN”, “.中国”domain names that were under the administration of China Internet Network Information Center (CNNIC). However, the Dispute Resolution Service Providers do not accept the Complaint regarding domain names with registration term of over TWO years.

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 for .CN and .中国domain names. 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

CNNIC ccTLD Dispute Resolution Policy promulgated by the China Internet Network Information Center, which was adopted on November 21, 2014, 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 CNNIC ccTLD Dispute Resolution Policy, which was adopted on November 21, 2014, and the China International Economic and Trade Arbitration Commission provided Supplemental Rules for ccTLD Dispute Resolution Policy.

Jurisdiction

CNNIC ccTLD Dispute Resolution Policy (CNDRP) is applicable to disputes result from registration or usage of domain names. The disputed names shall, within the range of “.CN”, “.中国”domain names that were under the administration of China Internet Network Information Center (CNNIC). However, the Dispute Resolution Service Providers do not accept the Complaint regarding domain names with registration term of over TWO years.

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 CNNIC ccTLD 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.
 

Please kindly notice that in accordance with CNNIC ccTLD Dispute Resolution Policy, for support of the complaint, it is required to meet the said three conditions.

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.

The Panel shall decide in the final decision on if "bad faith" is established. 

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.

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.

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 Procedure 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.