Study On The Conflicts Of Rights Between Domain Name And Trademark

In today's society, internet has become an indispensable part of daily life. The importance of domain name, as the key to internet services, is gaining increasing awareness. In the legal perspective, issues relating to domain name, particularly the conflict between domain name right and trademark right, has been a focal point for scholars. Based on existing studies, the author studies and analyses this issue and attempts to provide his own perspective. The paper can be divided into 3 parts: introduction, analysis, and conclusion. The analysis can be further divided into 5 sections.The first section is the basic issues of domain name. Starting from the origin of domain name, the author analyses the definition, legal framework, legal characters and attributes of domain name. Domain name as a product of technology was first designed to replace ip address, which is difficult to memorize and distinguish. It bears the attributes of mark, uniqueness, exclusiveness and value. The composition of a domain name is hierarchical, including top-level domain name (TLDS), sub domain name, or core domain name, etc. The author argues that domain name right is a civil right in progress. Although it does not yet constitute a full intellectual property right on its own, it has already acquired some general characters of IP right.The second section mainly discuss the pre-conditions of conflict between domain name right and trademark right. Conflict of right is a common phenomenon of law, and the conflict between domain name right and trademark right is just one example. There are 2 pre-conditions for this kind of conflict: a) the different ownership of trademark and domain name, and b)some relation between domain name and trademark, which is defined in this section as an obvious corresponding relationship.The third section studies the source and different categories of domain name-trademark conflict. Due to the differences in terms of scope of exclusiveness and ius prohibendi, the different rules of naming, and the existing deficiencies of domain name registration system, the conflict of the 2 rights is inevitable. The enormous economic interests within domain name further intensify the conflict. In general there are 2 categories of conflicts, namely conflict between domain name right and existing trademark right, and trademark right and conflict between trademark right and existing domain name right. The former category mainly appears in the forms of cyber squatting and bona fide cyber squatting.The forth section mainly surveys foreign legislation on dispute resolution for domain name right and trademark right conflict. For the purpose of protecting lawful rights of owners, diminishing cyber squatting and trademark proliferation, and maintenance of good order within trademark and domain name systems, State governments and relevant international organizations are adopting legislations to regulate the conflict between domain name and trademark rights. Some important legal instruments such as NSI's Domain Name Dispute Resolution Policy, ICANN's Uniform Domain-Name Dispute-Resolution Policy (UDRP), and the US Anticybersquatting Consumer Protection Act. UDRP is applicable t the dispute caused by cybersquatting and provides a whole set of compulsory administrative procedural rules that proves effective.The fifth section discusses the Chinese legislation on this subject matter and makes some proposals for improvement. Although internet is relatively new in China, it has nevertheless witnessed rapid development. Given the booming of civil disputes relating to domain name, particularly domain name disputes caused by conflict between domain name and trademark right, the Chinese legislation has released a set of rules of dispute resolution for domain name centering the Policies for Resolution of Domain name Disputes, which mainly follows the UDRP rules, as applicable law. However, this dispute resolution system has certain deficiencies which is due to the vague position of CNNIC, and the non-juridical administrative procedures under the Policies for Resolution of Domain name Disputes. In the last section the author makes several proposals that aims at providing some insights toward the improvement of China's dispute resolution system for domain name disputes.