On the legal issues of domain name dispute settlem

On the legal issues of domain name dispute settlement in China

lawyer Hong Youhong of Zhejiang Jinzhengda law firm

[Abstract] domain name dispute cases continue to occur, posing new issues for judicial implementation. Because the laws and regulations on handling domain name dispute cases are not perfect, it is difficult to handle such cases. This paper studies and discusses the reasons, nature, jurisdiction, handling procedures and applicable laws of domain name registration and disputes

with the rapid development of Internet, the number of domain name registrations has increased sharply. Cases of infringement of others' trademark protected by law, enterprise and other organization name rights due to domain name registration and use continue to occur. Due to the lack of specific legal provisions, such cases cannot be handled correctly and timely. Domain names are divided into international and domestic registered domain names (.Cn). This paper intends to study and discuss the handling of the dispute case of the Chinese domain name Jiangsu falling 10 yuan/ton

I. domain name construction and domain name registration

domain names are computer addresses connected to the international Internet. Domains on the Internet can be managed and divided in the namespace. Each domain is divided into multiple sub domains, and the sub domains can be further divided

internationally, domain names are divided into two categories: general and national. Common domain names include Com (business) Edu (Education) Gov (government agency) Int (International Organization) Mil (military institution) Net (network service organization) Org (non-profit organization). The domain name of a country (or region) is a branch of each country (or region). At present, more than 200 countries have been assigned top-level domain names. The Chinese top-level domain name is (.Cn)

domain names can also be divided into top-level domain names, secondary domain names, tertiary domain names, etc. Top level domain names in China Cn, adopt the hierarchical structure to set the domain names at all levels. The secondary domain names of China Internet are divided into "category domain names" and "administrative domain names". "Category domain name" is divided into 6, namely: AC. -- applicable to scientific research institutions com.―― Applicable to industrial, commercial, financial and other enterprises edu.―― Applicable to educational machinery Gov. -- applicable to government departments net.―― Applicable to Internet services org.―― Applicable to non-profit organizations. There are 34 "administrative domain names", which are named according to provinces, autonomous regions and municipalities directly under the central government. Such as bj.―― Beijing zj.―― Zhejiang Province

after the top-level domain name and the second level domain name are determined, name the third level domain name. The tertiary domain name is composed of letters, numbers and connectors, and the domain names are connected by real dots. The length of the tertiary domain name shall not exceed 20 characters. Generally, English name (or abbreviation) or Chinese Pinyin name is used as the tertiary domain name. For example. At present, China has begun to register Chinese domain names

Internet users can apply for domain name registration either directly to China Internet Network Information Center (CNNIC) or through network agents (ISPs). The applicant for domain name registration must be an organization registered according to law and able to undertake civil affairs independently, that is, a "legal person or other economic organization". At present, Beijing Administration for Industry and commerce is the only domain name registration authority entrusted by CNNIC. After the applicant meets the application conditions and provides the necessary documents, the domain name registration administration authority will complete the approval registration and operation within 10 working days from the date of receiving the documents in accordance with the principle of "first application, first registration", and issue the domain name registration certificate

II. Reasons for domain name disputes

domain name is the name and address that Internet users apply for registration with their own enterprise name and trademark or customized Chinese Pinyin name or English name, which is connected to the international Internet. It is the sign that the domain name registrant represents itself on the Internet. In accordance with international practice and China's regulations on domain name registration, domain name registration adopts the principle of first application, first registration and first ownership

with the rapid development of Internet, the commercial value and legal status of domain names are becoming more and more obvious. A large number of disputes arising from domain names appear and tend to expand. To sum up, domain name disputes mainly include: 1. Registering others' registered trademarks or well-known trademarks as their own domain names; 2. Register the name of another enterprise or well-known enterprise as your own domain name. The main reasons for such disputes are:

1. The commercial value of domain names. The domain name is the "house address" that identifies the location of the host. People can find the user (enterprise) home page and station on the Internet through the domain name. Users (enterprises) can also expand their popularity by promoting domain names. Based on the space infinity, time permanence, recognition absoluteness and other characteristics of domain names, as well as the popularity of Internet application technology, domain names gradually have market commercial value and are gradually recognized by the international community. Users (enterprises) can display their home pages through domain names to introduce and publicize their products or services to the public. Under the basic means of e-commerce, network domain name is like the electronic trademark of network space, which has huge advertising effect and commercial value. This will entice the applicant to register the names of other enterprises or well-known enterprises and domain names with the same or similar trademarks or well-known trademarks in accordance with the legal principle of "first application, first registration", and make use of the existing cognitive commercial value of well-known enterprises or well-known trademarks to obtain the benefits of domain names. At the same time, they used the uniqueness of domain names, adopted the strategy of DOMA inname blacking, prevented enterprises from obtaining or using such network domain names, threatened the transfer of such network domain names to third parties, and forced these enterprises to buy back the domain names at a high price. In this environment, domain names become special goods that can bring benefits to enterprises. Its importance does not exceed the commercial value of traditional enterprise names or trademarks. Because of the independent legal status and commercial value of domain names, as well as the identification function, domain name registrants and original owners are prone to domain name disputes

2. Infringement of prior rights. According to the regulations on domain name registration, organizations that are legally registered and can independently undertake civil affairs have the right to apply for domain name registration, and the number of registrations is unlimited. The registration content is determined according to the principle of first application, first registration, first ownership. The law gives the applicant the domain name right, and the core of domain name right protection is the part of the registered domain name that is different from other domain names. However, the applicant often registers his enterprise name or well-known enterprise name and trademark or well-known trademark as existing. According to China's trademark law and the regulations on the administration of enterprise name registration, Yuanbao, there are many prior rights to registered trademarks and enterprise names, such as prior trademark rights, trade name rights, geographical name rights, name rights, prior use rights, etc., while those related to domain names are mainly trade name rights and prior use rights. The right of trade name refers to the exclusive right obtained by registering one's own enterprise name according to law, that is, the right of enterprise name. The conflict between domain name right and prior trademark right is due to the right confrontation of using others' registered trademarks for domain name registration. This leads to the domain name registration violating the prior rights of the original enterprise or trademark owner, that is, the enterprise's trade name right (name right) and trademark ownership

third, the legal nature of domain name disputes

with the widespread use of Internet in business activities, enterprise users occupy business opportunities by registering domain names, which is easy to produce registered domain name owners. Due to the immature theory of domain name dispute settlement and the lack and inconsistency of legal provisions, the legal nature of domain name disputes is still striving to make breakthroughs in membrane materials and membrane groups such as microfiltration membrane, ultrafiltration membrane, nanofiltration membrane and reverse osmosis membrane. Through the qualitative study of domain name disputes, it has important unilateral significance for the correct application of civil law theory and legal provisions in dealing with domain name disputes. Item 1. Before testing the service life of metal materials, there are three views on the qualitative issues of domain name disputes: 1. Infringement lawsuit; 2. Right confirmation action; 3. The coincidence of infringement action and right confirmation action. The author is equal to the third view

from the analysis of the causes of domain name registration, domain name registrants register other well-known enterprises or well-known trademarks as their own for the commercial value of domain names, hoard and make no use of them, but prevent well-known enterprises or well-known trademark ownership from registering domain names with their own enterprises or well-known trademarks, and even sell or transfer the domain names of other enterprises or well-known trademarks to others for profits, Or the publicity on the homepage of the domain name station has nothing to do with the products or services displayed by the original enterprise and trademark, or even defaces the enterprise name or trademark, resulting in domain name registration disputes. In order to safeguard their legitimate rights and interests, the owner of the enterprise name or trademark resolves the dispute over the registration of the domain name through litigation, requiring the court to confirm the right that the registered domain name is invalid, or requiring the court to determine the infringement of the enterprise name right or trademark ownership by the registration of the domain name, and requiring the cessation of the infringement and compensation for economic losses. From the analysis of the current court cases in China, domain name registration disputes include the action of confirming rights and the action of infringement. The right confirmation lawsuit is the basis, that is, the court can confirm that the registered domain name is invalid or revoked, and can also order the registered domain name owner to infringe the trademark right or anti unfair competition right. If the Beijing Second Intermediate People's court heard the case of P & G v. Beijing guoinformation Co., Ltd. for the dispute over the registration of domain names, it made the following judgment: (1) the "" domain name registered by the defendant Beijing guoinformation Co., Ltd. is invalid, and Beijing guoinformation Co., Ltd. immediately stops using it and revokes the domain name within 10 days after this judgment takes effect; （2） The defendant Beijing guoinformation Co., Ltd. compensated the plaintiff (U.S.) P & G for the economic loss of 20000 yuan

IV. jurisdiction of domain name disputes

the ways to resolve the jurisdiction of domain name registration are: first, jurisdiction through arbitration; The other is jurisdiction through litigation

(I) arbitration jurisdiction. In order to quickly and timely mediate domain name registration disputes, domain name registration disputes have different solutions and jurisdictions according to the international uniformity of domain names and the characteristics of countries (regions)

in order to establish a municipality mechanism for globally unified domain name disputes, the World Intellectual Property Organization (WIPO) issued the final report of the World Intellectual Property Organization (WIPO) on the consultation process of Internet domain names - the management of Internet Names and addresses and their intellectual property issues (hereinafter referred to as the WIPO final report) in April 1999. In this report, WIPO recommended three procedures to the domain name registration administration of Member States, one of which is the unified dispute resolution procedure, which provides a set of efficient procedures for dissidents to abuse domain name registration. The procedure report specifies in detail the legal basis of "improper domain name registration" and dispute resolution procedures, and also stipulates that the dispute resolution institution includes the dispute resolution service provider, that is, the dispute resolution expert group composed of three experts. The decision made by the expert group is binding on both parties and the domain name registration authority. On August 26th, 1999, the international Internet Corporation for name and address distribution (ICANN) published the unified rules for handling domain name disputes, which took place in the international top-level domain name ".Com." “.net.”、 The basis of domain name disputes under ".Org". On October 24, 1999, ICANN proposed that the World Intellectual Property Organization (WIPO) be the first "dispute resolution service provider". These provisions provide procedures and handling rules for resolving international top-level domain name disputes, and also determine the jurisdiction of domain name registration disputes

in China, the rules governing the handling of domain name registration disputes under the ".Cn" top-level domain name are relatively lacking and incomplete. In the second half of 2000, under the auspices of CNNIC, the "China Internet domain name dispute resolution measures (Trial)" was promulgated. These two normative texts