CIETAC Establishes Domain Name Disputes Resolution Centre And Announces Trial Domain Name Disputes Resolution Rules
On 1 November 2000, the China Internet Network Information Centre (CNNIC), China's domain name registration authority, designated the China International Economic and Trade Arbitration Commission (CIETAC) as the country's domain name disputes resolution body. CNNIC's designation was made pursuant to the Trial Measures for the Resolution of Chinese Domain Name Disputes (Measures), which became effective on 30 November 2000. In order to carry out its new role, on 20 December 2000, CIETAC established the CIETAC Domain Name Disputes Resolution Centre (Centre) in Beijing. The Centre subsequently formulated Trial Domain Name Disputes Resolution Rules (Rules), which became effective on 1 January 2001. The Centre's mission is to provide a fast and low-cost forum for resolving disputes pursuant to the dispute settlement procedures set out in the Measures.
1. Jurisdiction
The scope of the Rules covers disputes brought by the holder of a well-known trademark or a PRC-registered trademark holder against a CNNIC-registered domain name holder (Measures, Article 2). Furthermore, the Rules only apply to Chinese-language domain names, which include domain names composed of Chinese characters.
2. Complaint And Defence
2.1. Claimant's Burden Of Proof
In order to establish a legitimate claim, the claimant must satisfy a number of requirements set out in the Rules. A claimant must prove in the complaint that:
- it owns a trademark;
- the domain name in dispute is identical to or confusingly similar to the trademark;
- the defendant (domain name holder) does not possess trademark or other rights or interests in respect of the domain name or other character combinations, including the domain name;
- the defendant (the domain name holder) has registered and used the domain name in bad faith; and
- its business has been or is very likely to be adversely affected by the registration and use of the domain name. If the trademark involved is a well-known trademark under PRC law, the claimant does not need to prove this item. 1
2.2. Forms And Language
Both the complaint and defence shall be submitted to the Centre in writing and electronic form (except for evidence not in electronic form), using the Centre's standard forms 2 which can be downloaded from its website, www.cietac.org.cn.
In addition, submissions shall be prepared in Chinese unless the Centre decides otherwise, and shall not exceed 8000 characters in length.
2.3. Time-Limit
When a complaint meets all the formal requirements, the Centre shall send the complaint to the defendant within three working days from receiving the claimant's payment of fees in accordance with the Rules. The date on which the Centre serves 3 the complaint on the defendant will be the date of commencement of the proceedings.
If a complaint has not properly been filed, the Centre shall then notify the claimant and request the claimant to amend the complaint within five working days from receiving the notice. If the claimant fails to amend the complaint within the time-limit, or the amended complaint still fails to meet any of the formal requirements after it has been resubmitted, the claimant shall be deemed to have withdrawn its complaint.
The defence shall be submitted to the Centre within 20 days from the date of commencement of the proceedings. The Centre may extend the time-limit under special circumstances at a defendant's request. The parties may also mutually agree to extend the time-limit subject to approval of the Centre.
3. Expert Panel
A case before the Centre shall be decided by an expert panel formed in accordance with the Rules. The Centre maintains an Expert List (List) which currently contains 32 experts in the fields of internet, intellectual property and law. All members of an expert panel shall be drawn from the List. The List is available on the Centre's website.
3.1. Formation Of An Expert Panel
Each party shall in its complaint or defence indicate whether it wishes the dispute to be decided by a one-expert panel or a three-expert panel. If a party indicates that it wishes to submit the dispute to a three-expert panel, the party shall further select three expert candidates from the List in order of preference. Alternatively, the party may authorize the Centre to appoint an expert from the List on its behalf. Unless both parties expressly request a three-expert panel, a case shall be decided by one expert to be appointed by the Centre.4
For a three-expert panel, the Centre shall appoint the one expert from each party's list of three candidates in accordance with the party's order of preference 5. The Centre shall appoint the third and presiding expert from the List.
3.2. Independence and Impartiality of an Expert
Experts are required to be independent and impartial. Before accepting an appointment, an expert shall disclose to the Centre any circumstances that may cause reasonable doubt as to his independence and impartiality. An expert is obliged to submit to the Centre a declaration of independence and impartiality before accepting an appointment.
During the proceedings, if any new circumstances that may cause reasonable doubt as to an expert's independence and impartiality arises, the expert shall immediately disclose the situation to the Centre, which then has the power to appoint a new expert.
Should a party believe that an expert has a personal interest in the opposing party that may affect an impartial decision of the case, that party has the right to challenge the expert, although challenges should be made before the expert panel makes its award. The Director of the Centre shall decide whether the expert shall be removed.
4. Award
The expert panel shall not hear a case unless it decides that a hearing is necessary. A party may request a hearing, although they will be responsible for bearing the related expenses.
The expert panel shall weigh the evidence, and has the power to request further statements or evidence from the parties in addition to the complaint and the defence. The expert panel shall decide a case in accordance with the Measures. The expert panel generally has the power to draw any conclusions which it considers appropriate from a party's failure to follow the Rules or any orders of the expert panel.
An award shall be decided in accordance with the majority opinion of the expert panel. When there is no such majority opinion, the award shall be decided in accordance with the opinion of the presiding expert.
An award shall state the results, reasons, date on which the award is made and names of the experts, and the award shall generally not exceed 8000 Chinese characters. All dissenting opinions shall be attached to the award. An award shall be made in writing and electronic form.
In general, the expert panel shall make its award and send the award to the Centre within 14 working days after its formation. At a party's request, the expert panel has the power to extend the time-limit under special circumstances.
Before signing the award, the experts shall submit the draft award to the Centre. The Centre may bring to the attention of the experts any issue related to the form of the award, provided that the experts' independence of decision is not affected.
5. Remedies
There are two possible remedies available from the Centre. The first remedy is the cancellation of the domain name. The second remedy is the transfer of the domain name to the claimant (Measures, Article 16).
6. Proceedings And Awards
The proceedings and awards of the Centre are not fully binding upon the parties. At any time during the proceedings, the parties have the right to direct the same dispute to a court or to another arbitration institution. Furthermore, in the event that before or during the proceedings of the Centre, a party commences arbitration or court proceedings with respect to the same dispute 6, the Centre or the expert panel overseeing the dispute must decide whether to suspend, terminate or continue the proceedings of the Centre. Lastly, before executing an award of the Centre, a domain name registration service entity 7 must wait 30 working days. In the event that a court or an arbitration institution takes cognizance of the same dispute brought to it by a party during this period, the domain name registration service entity shall not execute the award of the Centre. 8
7. Service And Publication Of Award
Copies of an award shall be sent to the parties, the CNNIC and the relevant domain name registration service entity by the Centre within three working days after the Centre receives the award from the expert panel. Unless the expert panel decides otherwise, the Centre shall publish the award on its website www.cietac.org.cn.
8. Expenses
Fees charged by the Centre are calculated according to number of experts involved and number of domain names in dispute. The general fee schedule is as follows:
|
Number of Experts Involved |
Number of Domain Names in Dispute |
Fee (all amounts are in Renminbi ) |
|
1 expert |
1 |
3,000 |
|
2 to 5 |
5,000 |
|
|
6 to 10 |
7,000 |
|
|
Above 10 |
8,000 |
|
|
3 experts |
1 |
6,000 |
|
2 to 5 |
9,000 |
|
|
6 to 10 |
11,000 |
|
|
Above 10 |
13,000 |
The claimant shall pay the fees according to number of experts and domain names stated in its complaint within 10 working days from submitting the complaint to the Centre 9. Failing that, the claimant shall be deemed to have withdrawn its complaint.
The Centre will charge extra fees depending upon the situation of a particular case if the expert panel decides to hear the case at a party's request.
Footnotes
1 Compared to ICANN's domain name rules, this item seems to put a claimant in a more difficult position.
2 Included in the forms are, among other things, (i) a declaration that a duplicate copy of the same submission has been sent to the other party (and the domain name registration service entity in the case of a claimant); and (ii) a declaration that the submission is against the other party only, not against the Centre and the expert panel, CNNIC and any domain name registration service entities, registration staff or domain name registration agencies.
3 In general, all documents stipulated in the Rules can be sent by fax, express mail or via the internet. For documents sent by fax, the date of service is the date indicated in the result report of the fax. For documents sent by express mail, the date of service is the date indicated in the receipt or the acknowledgment receipt. For documents sent by internet, the date of service is the sending date to the extent that the sending date can by verified. When a document is sent by more than one method, the date of service is the earliest of the above.
4 In the event that a claimant in its complaint chooses a three-expert panel, but the defendant fails to state its choice, the Centre shall, to the extent possible, appoint one expert from the claimant's candidates, and the second and the third and presiding expert from the List.
5 In the event that the Centre cannot successfully appoint one expert from a party's candidates within five working days since receiving the party's selection, the Centre shall appoint one expert from the List. In addition, if a party's candidates all refuse to accept the appointment, the Centre will directly appoint one expert from the List.
6 The Rules require that the parties disclose in their submissions any court or arbitration proceedings with respect to the same dispute, pending or completed, and provide all available documents regarding those proceedings.
7 A domain name registration service entity is defined in the Rules as an entity which, with authorization from the CNNIC, accepts domain name registration application and completes the registration.
8 However, the award of the Centre will be executed when the party who brought the court or arbitration proceedings withdraws its claim or the claim is denied by the court or arbitration institution (Measures, Article 17).
9 The amount due will be adjusted later according to the number of experts of the expert panel actually formed in accordance with the Rules.
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.