Guidelines Set Forth for Hearing Cybersquating cases
On August 2000, the Beijing Higher People's Court issued a guideline for hearing cybersquating cases. The following is the full text.
Being a name and address of a user on the Internet, a domain name has both technical and distinctive functions, the former function serving as the address and the latter as the sign of a domain name registrant on the Internet. Due to the complexity of domain names, there have been constantly arising civil disputes over intellectual property right stemming from the registration and use of domain names (disputes for short), and there exist different conceptions with regard to the application of law in the intellectual property law community and in the judicial practice, which have affected the due and timely hearing of disputes of the nature by the people' s court. Therefore, investigation and studies have been conducted and the opinions presented as follows for the courts at various levels of the Beijing Municipality to refer to and implement in their court hearings.
Where an interested party, running into conflict with a registered trademark, an enterprise name and a name of some other organisation, institutes a proceeding in the people's court, these cases of civil disputes shall be accepted by the people' s court, if they are in compliance with the provision of Article 108 of the Civil Procedure Law upon examination,
II. Jurisdiction over Cases of Domain Name Disputes
In respect of cases of domain name disputes, the intermediate people 's court is the court of first instance; in respect of litigation with the object exceeding RMB 3 million yuan, the higher people's court is the court of first instance.
Domain name disputes are under the jurisdiction of the people's court of the place where the defendants have their residence or where the infringing acts are committed. When the place of a domain name registration is also the place where the infringing act takes place, the people' s court of the place of registration may have the jurisdiction.
The cause of a domain name dispute shall be determined according to the nature of the legal relations of the two parties involved in a dispute. A proceeding instituted by the plaintiff on the ground of infringement on its trademark right shall be determined as a dispute over trademark infringement; a proceeding instituted on the ground of unfair competition shall be determined as caused by an act of unfair competition.
Bad faith registration and preemption of other people's well���� known trademarks are acts contravening the principle of honesty and good faith, violating the public accepted business morality and committing unfair competition, namely acts to which the General Principles of the Civil Law apply and which the Unfair Competition Law regulates.
To determine whether or not an act of domain name registration constitutes domain name registration in bad faith, the act shall be examined to determine whether or not it simultaneously meets the three necessary conditions as follows:
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That the registered domain name is identical with and deceivingly similar to a representation owned by the rightholder thereof;
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That the domain name holder does not enjoy any other priority right in the representation of said domain name; and
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That the domain name is registered and used in bad faith.
To be specific, the holder of the domain name offers it for sale, leases it or assigns it by other means to the rightholder of the representation; induces, for profit, the Internet users to visit his website/homepage or to enter into its other online service by way of deliberately confusing the domain name with the trademark, business name of the rightholder; or specially prevents others from registering the trademark and business name as a domain name; or register the domain name for the purpose of impairing another person' s business good will, etc..
Where a domain name registration constitutes a case of unfair competition, the people' s court may order the domain name holder/user to cease using the domain name, to apply for the revocation or alteration thereof. Where one causes damages to the rightholder due to the act of unfair competition, he shall also be imposed compensation therefor.
VI. Imposition of Legal Liabilities
V. Determination of Registration of Domain Names in Bad Faith
IV. Application of Law Regarding Acts of Bad- Faith Registration and Preemption of Others' Well- Known Trademark as Domain Names
III. Cause of Domain Name Disputes
I. Acceptation of Cases of Domain Name Disputes
Several Guiding Opinions of Beijing Municipal Higher People's Court Relating to the Hearing of Civil Disputes over Intellectual Property Arising from Registration and Use of Domain Names
