Hong Kong: PRC Domain Name Dispute Resolution

Last Updated: 5 November 2002
Article by Kenny Wong
Most Read Contributor in Hong Kong, September 2016

1. China Internet Domain Name Regulations ("Regulations")

The Regulations came into force on 30 Sept 2002 and regulates the administration and operation of China Internet Domain Names System of .cn and Chinese domain names. Under the Regulations, the domain name registry refers to the administration institution that is responsible for operating and administering the registration of one or more top-level domain names, while a registrar is a service institution that accepts applications for domain name registration and completes the registration process in the domain name database (Article 3).

Establishment of a domain name registry within PRC shall be recorded with the Ministry of Information Industry (Article 11). The functions and responsibilities of the registry are listed in Article 9. Any organization that engages in the service of domain name registration shall satisfy a number of requirements listed out by Article 12, e.g. it shall have sufficient funds and expertise to provide long-term services and have implemented measures to safeguard the security of the network and information. Moreover, the organization has to record with the Ministry of Information Industry and submits the relevant supporting documents (Article 13).

Under the Regulations, domain name registration adopts the "first come, first serve" principle (Article 16). Generally the registry shall not reserve domain names or do so in any disguised form (Article 17). The registry and registrars shall also publish information such as fees and duration for domain name registrations (Article 18). The Regulations also impose content restrictions on any domain name to be registered or used, mainly on grounds of national security, national unity and public morality (Article 19). It should be noted that the liability for the infringement of others' legal rights and interests arising from holding or using a domain name shall be borne by the holder of the domain name (Article 22). Procedures to record change of registration particulars are stipulated in Articles 23 & 24.

For domain name disputes, a domain name registry may designate a neutral institution (a domain name dispute resolution institution) for resolving the disputes (Article 26). The decision of such an institution shall only determine whether to change the information of the holder of the domain name in dispute and shall be subject to any legally effective judgement of the people's court or the arbitration organization on the same dispute (Article 28).

Any person who hampers the normal operation of the Internet domain names Systems in China, violates any of the record procedures in the Regulations or contravenes Article 17 or 18, may be ordered by the Ministry of Information Industry to rectify within a specified period, or be warned or imposed a maximum fine of RMB 30000 (Article 30). For contravention of Article 19, the responsible person may attract criminal or civil liabilities (Article 32).

Domain name registrars which came into service prior to the entry into force of the Regulations shall comply with the record procedures within 60 days from 30 Sept 2002 (Article 33).

2. CNNIC Domain Name Dispute Resolution Policy ("Policy")

The Policy came into force on 30 Sept 2002 and repealed the Chinese Character Domain Name Dispute Resolution Policy (Trial Implementation). The Policy stipulates that only Dispute Resolution Service Providers (the "Providers") recognized by CNNIC can resolve domain name disputes (Article 3). A panel of one or three experts, which may be selected by the Complainant and the Respondent from the on-line published list of the panelists, shall be employed by the Providers to resolve domain name disputes (Article 4). A party may request the withdrawal of a panelist whom he believes to have a material interest in the opposite party which would influence his/her impartiality (Article 11).

Any institution or person who considers that a registered domain name conflicts with its or his legitimate rights or interest may file a complaint with any of the Providers, who shall render a decision to the dispute within 14 days upon the appointment of the panel (Article 5). Chinese language shall be used in domain name dispute resolution proceeding unless otherwise agreed by the parties or determined by the panel (Article 6). The complaint and the respondent shall bear the burden of proof for their own claims (Article 7). Articles 8 & 9 basically mirror Articles 4 & 5 of the Several Issues Concerning the Application of Law to the Trial of Civil Dispute Cases Involving Computer Network Domain Names Interpretation (which came into force on 24 July 2001) and spell out the conditions for support of a complaint and the concept of 'bad faith' respectively.

If a complainant files complaints against multiple domain names owned by the domain name holder, either party may request the disputes to be consolidated (Article 10). Where the panel supports the complaint, the registered domain name shall be cancelled or transferred to the complainant, otherwise the complaint shall be rejected (Article 13).

A complaint submitted to the Provider or a decision rendered by a panel shall not prejudice the rights of either party to bring an action before a court at the place where CNNIC's principal office is located or a Chinese arbitration institution agreed by the parties (Article 14). The Provider shall only enforce a Decision after 10 days from its publication to see if the dispute has been brought before and accepted by a competent judicial authority or arbitration institution (Article 15). After its decision is suspended, the Provider shall enforce: I) any settlement reached by the parties, II) its decision provided that a judicial action has been withdrawn or rejected, or III) any legally effective judgement or award by a judicial authority or arbitration institution (Article 15).

A Provider shall establish a dedicated website to receive domain name dispute complaints on-line and make available to the public the relevant materials, subject to the duty of confidentiality (Article 17).

3. Rules for CNNIC Domain Name Dispute Resolution Policy ("Rules")

The Rules came into force on 30 Sept 2002 and introduced detailed procedures for domain name dispute resolution.

Communications among the parties, panel and Provider are governed by Chapter II of the Rules. Such communication shall be in writing and can be sent by facsimile, post or electronic transmission. The preferred means of communication of the parties shall be employed by the Provider (Article 6). Chinese language shall normally be used in the proceedings and the panel may order a Chinese translation to be submitted alongside a foreign-language document (Article 8).

A complaint shall be submitted in hard copy and in electronic form and shall contain certain information listed in Article 12. A complainant may elect to have a single member panel or a three-member panel (in which case he can choose three panelists from the list of panelists to serve as one of the panelists in the order of his own preference) (Article 12 (iv)). A complainant shall also include in the complaint, for example, his preferred means of communication (Article 12 (iii)), all information about the respondent (Article 12 (v)), his legitimate rights and interests (Article 12 (viii)) and the remedies sought (Article 12 (x)).

Likewise, a response shall be submitted in hard copy and in electronic form and shall contain information listed in Article 18. A respondent may elect to have a three-member panel if the complainant has opted for a single member panel (Article 18(iv)), in which case he has to pay half of the applicable fees for a three-member panel (Article 19), and may choose three preferred candidates as the complainant is entitled to do under Article 12 (iv)(Article 18 (v)).

The Provider shall maintain and publish a publicly available name list of panelists (Article 21). The fees for a single member or three-member panel shall be paid entirely by the complainant, except when the respondent is the only party who elects a three-member panel in which case the parties would share the fees (Articles 22 & 23). A panelist shall remain impartial and independent during the proceedings, or otherwise be substituted (Article 29). All communications between a party and the panel or the Provider shall be made to a case administrator appointed by the Provider and no unilateral communication with the panel is allowed (Article 30).

A panel shall normally decide a complaint on the basis of the statements and documents submitted and not by in-person hearings (Articles 31 & 33). Either party may petition to consolidate multiple disputes (Article 36). The majority rule applies in a three-member panel (Article 39). A complaint brought in bad faith may constitute an abuse of the domain name dispute resolution procedure (Article 40). If legal or arbitral proceedings in respect of the domain name is initiated in parallel, the Provider or the panel can stay or terminate the proceedings or proceed to issue a decision (Article 41). Before a decision is made, the proceedings may be terminated if the parties agree on a settlement or the panel considers it unnecessary or impossible to continue (Article 42).

In addition to the fees mentioned above, a complainant shall also pay to the Provider an initial fixed fee in accordance with the Provider's Supplemental Rules (Article 45), otherwise no action will be take by the Provider (Article 46). A complaint is deemed to be withdrawn if the fees are not received within 8 days of receiving the complaint. In the exceptional event that a hearing is held at a party's request, additional fees are chargeable (Article 48).

The original email legal update is copyright Johnson Stokes & Master at the date written first above. All rights reserved. This publication provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is intended to provide a general guide to the subject matter and is not intended to provide legal advice or a substitute for specific advice concerning individual situations. Readers should seek legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.

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