What are the applicable laws for domain name disputes
To resolve domain name dispute cases, we must first clarify the nature of the domain name case nature. Judging from the domain name cases that have occurred in China, almost all of them were prosecuted on the grounds of trademark infringement or unfair competition. In fact, the vast majority of domain name cases are converted into trademark infringement cases or unfair competition cases. Domain name cases are converted into infringement or unfair competition cases. The reason for this provision is that domain names currently do not have independent legal status within the existing legal framework. Although many scholars believe that in the Internet age, domain names, as a symbol of an enterprise in the electronic space, have an identification function similar to that of a trademark. They have become an important intangible asset of the enterprise and have the value and attributes of independent intellectual property rights. They should be independent and become a an independent type of right. However, at present, no country's laws include domain names as independent rights into the civil rights system. Since domain names are often linked to a company's trademarks, products, and company names, domain name disputes are often linked to these existing intellectual property rights and turned into trademark cases or unfair competition cases.
Since the domain name dispute case is an infringement or unfair competition case, then, what kind of law should be cited when dealing with such disputes? In particular, infringement, including citing specific provisions of the Trademark Law, is currently highly controversial. The court cannot determine infringement beyond trademark infringement explicitly recognized by law. Although the Trademark Law adopts an enumeration method, Article 38, paragraph 4, "causing other damage to the exclusive right to use a registered trademark of others" is a general provision. Therefore, the court can, by exercising its discretion, characterize domain name squatting as “other infringement” as stipulated in Article 38, paragraph 4, of the Trademark Law. The court of first instance in this case applied the trademark law from this point of view and made its judgment.
Although it is still controversial whether disputes between domain names and trademarks are regulated by the Trademark Law, both are closely related to trademarks, the subject of intellectual property law protection. Therefore, disputes between domain names and trademarks should be regulated by laws related to intellectual property rights. In addition to directly citing the Trademark Law, the judgment in this case also cited the provisions of Article 2 of my country’s Anti-Unfair Competition Law and Article 4 of my country’s General Principles of Civil Law.
my country's "Anti-Unfair Competition Law" stipulates: “In market transactions, operators should follow the principles of voluntariness, equality, fairness, good faith, and abide by recognized business ethics.” The principle of good faith in the Anti-Unfair Competition Law requires market operators to act in a manner that does not harm the interests of others. pursue their own interests. The act of squatting on domain names fundamentally violates the principle of good faith and causes damage to fair and orderly competition. Therefore, the act of registering a domain name using someone else's well-known trademark violates Article 2 of the Anti-Unfair Competition Law and is an act of unfair competition. Article 4 of my country’s General Principles of Civil Law stipulates: “Civil activities shall follow the principles of voluntariness, fairness, equivalence, compensation, and good faith.” This provision is of course also used as the legal basis for dispute resolution.
"Supreme People's Court's Notice on Trials Involving Computer Network Domain Names" Interpretation of Several Issues Applicable Law in Civil Dispute Cases"
Article 8 If the people's court determines that the registration or use of a domain name constitutes infringement or unfair competition, it may order the defendant to stop the infringement and cancel the domain name, or order the plaintiff to register and use the domain name at the request of the plaintiff; causing actual damage to the right holder Yes, the defendant may be ordered to compensate for losses.
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