- Domain Name Dispute Resolution Procedures
- June 28, 2008 | Author: Hongjun Zhang
- Law Firms: Holland & Knight LLP - Office ; Holland & Knight LLP - Tampa Office
A person who believes that a registered domain name contravenes its lawful interests may file a complaint with a dispute resolution institution accredited by CNNIC under the Measures of CNNIC for the Resolution of Domain Disputes (the “dispute resolution measures”). To date, CNNIC has accredited two arbitration bodies for the resolution of domain name disputes: the Domain Name Dispute Resolution Center of the China International Economic and Trade Arbitration Commission (CIETAC) and the Hong Kong International Arbitration Center (HKIAC). A complaint may not be brought under the Dispute Resolution Measures if the disputed domain name has been registered for over two years.
The dispute resolution institution will order the registration company to transfer registration of the domain name to the complainant if any of the following conditions is met:
- the disputed domain name is identical with or confusingly similar to the complainant’s name or mark in which the complainant has lawful rights or interests
- the disputed domain name holder has no right or legitimate interest in respect of the domain name or major part of the domain name
- the disputed domain name holder has registered or has been using the domain name in bad faith
The dispute resolution measures provide that bad faith will be established if any of the following circumstances exist:
- the purpose for registering or acquiring the domain name is to sell, rent or otherwise transfer the domain name registration to the complainant who is the lawful owner of the underlying name or mark or to a competitor of the complainant, and to obtain unjustified benefits
- the disputed domain name holder, on many occasions, registers domain names in order to prevent owners of the names or marks from reflecting the names or the marks in corresponding domain names
- 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
- other circumstances which may prove the bad faith
The dispute resolution process provided under the dispute resolution measures is not an exclusive remedy. A party may also bring an action before a PRC court in Beijing. One possible advantage of this course of action is that a claim concerning a disputed domain name would be subject to a different “statute of limitations” period in a judicial proceeding from that provided in the dispute resolution measures. As noted above, a claimant must institute dispute resolution procedures within two years of the registration of the domain name. In contrast, while the statute of limitations for a claim relating to a domain name dispute is also two years for a court proceeding, the time does not start to run until the claimant knew or should have known of the claim.