Hong Kong: PRC Domain Name Dispute Resolution

Last Updated: 5 November 2002
Article by Kenny Wong
Most Read Contributor in Hong Kong, October 2018

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions