With the proliferation of the online sphere, domain names have become a crucial IP asset for enterprises. Understanding the similarities and differences between current Chinese and international top-level domain name dispute resolution strategies is essential for selecting the most appropriate method of defence and quickly resolving any disputes that may arise.
Filing a complaint
In the event of a domain name dispute, an applicant can file a complaint with the suitable dispute resolution centre. After filing, this centre will then notify the suspected infringer or their domain name registrar to participate in arbitration, in which a panel will decide whether to cancel or transfer the disputed domain name to the applicant (the real owner).
When it comes to handling cases, most applicants prefer to resolve domain name disputes through filing complaints. In addition to the success rate of doing this, applicants can also benefit from an advantageous timeline, the opportunity for a consolidated review and automatic enforcement from the arbitration centre.
National and international domain name disputes
It is key to consider the unique aspects of both Chinese and international domain names in order to effectively navigate any potential disputes. This will enable applicants to be better prepared to address disputes when they arise.
Further, it is crucial to take the following into account:
Complaints concerning disputes over Chinese top-level domain names must be filed within three years after the registration date. Later filings will not be accepted but can still be addressed through judicial procedures.
Complaints must be filled out in the appropriate form and the instructions should be carefully followed to avoid rejection.
The facts of the complaint must meet the written requirements and follow the correct template. It is typically recommended to focus on the discussion according to the relevant provisions of the UDRP or the CNNIC Domain Name Dispute Resolution Measures.
According to the UDRP, malicious registration and domain name use may be determined by the panel, which includes – but is not limited to – situations where infringers have registered or acquired a domain name primarily for the purpose of selling, renting or transferring it to the owner of the trademark or service mark, or to competitors in order to generate additional revenue.
Judicial proceedings
Another option for resolution is through judicial proceedings. In China, domain name litigation can be categorised as trademark infringement litigation (or civil infringement or unfair competition litigation) and undergoes the same process.
While the duration of judicial proceedings in domain name disputes is slightly longer than that of complaints, it still has some advantages.
As well as requesting a volunteer withdrawal of the disputed domain name, the applicant could also request that the infringer publicly apologises to further compensate for losses.
The applicant could apply for pre-litigation preservation in accordance with the law at the time of infringement. This would prohibit the continued use of the disputed domain name and reduce damage to the business.
The judgment issued by the court could deliver high-level credibility.
Jurisdiction and application of the law
When it comes to domain name infringement disputes, it is crucial to not only consider the legal limitations of the proceedings but also determine the appropriate jurisdiction, which could lie with the court in the location of the infringement or the defendant's domicile. If it is challenging to pinpoint these locations, the plaintiff can file a lawsuit in the intermediate people's court where the computer terminal server or IP address of the domain name is located.
Further, domain name disputes in China may also be resolved using the Anti-Unfair Competition Law, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes involving Computer Network Domain Names, the Civil Procedure Law and other relevant regulations.
Key takeaways
When dealing with domain name disputes in China, it is advisable for rights holders to first understand the nature of the domain name and the time constraints for resolution. It is also critical to carefully consider the applicable laws and regulations, taking into account the urgency of stopping infringement as well as the expected time and cost of the process. In the increasingly complex and competitive online sphere, it is crucial that stakeholders can effectively protect their legitimate rights and interests.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
