By: Nguyen Tuan Minh
Tilleke & Gibbins Consultants Ltd., Hanoi, Vietnam
Registration of domain names under the country code top level domain dot.VN in Vietnam has increased significantly since the new regulation on the management and use of Internet in Vietnam (Decision No. 92/2003/QD-BBCVT) was issued by the Ministry of Post and Telematics of Vietnam last May 2003. In an attempt to help boosting e-commerce in Vietnam, the new regulation provides simple procedures for registration of domain names and the internet authority (which is the Vietnam Internet Center ("VNNIC") under the Ministry of Post and Telematics) would act very fast in processing applications. If documentation is proper and complete, registration can be granted within one or two days. It is no longer prerequisite condition that a foreigner be residing in Vietnam or a foreign company have either representative office, branch or subsidiary in Vietnam to be eligible for registering domain names under the country code top level domain (dotVN) in Vietnam. It is no longer required that hosting server be located in Vietnam.
Domain name are registered on a "first come first serve" basis. Domain name should not contain words that may offend or are contrary to Vietnam’s interests, national security, social morals, culture and customs. A domain name related to a geographical name, leader, famous person or generic name of an economic industry or sector; line of goods; governmental, political or social organisations which may create confusion or disputes may not be accepted for registration.
Domain name which, in VNNIC’s discretion, may be disputed shall be placed on the government website www.vnnic.net.vn (this site is in Vietnamese language) for about three days and if there is no challenge, registration shall be granted.
Under Decision 92, it is the responsibility of the registrant to ensure that by registering and use of domain name shall not violate intellectual property laws and shall not infringe any intellectual property rights of any other parties (the "IP Owner") and the Decision does not require VNNIC, when granting domain name registrations, to verify whether or not a domain name registration may violate any IP Owner’s rights.
Should a domain name registration infringe any IP Owner’s right and the owner file his complain and opposition to such registration to VNNIC, the case shall be treated as a domain name related dispute.
Decision 92 authorises VNNIC as the agency to handle domain name related disputes, but unfortunately, Decision 92 lacks necessary provisions on domain name disputes resolution policies. Above all, there may be lack of law provisions in Vietnam protecting and enforcing against infringement of individual or organization’s legitimate intellectual property rights relating to domain names and in the Internet. It seems there is not yet any consensus among governmental authorities on this legal matter.
In the meantime, VNNIC may function in handling a domain name related dispute as the mediator by helping the IP owner to reach an amicable resolution of compensation to the domain name registrant to get the domain name back. Due to lack of laws, VNNIC shall likely not to issue any ruling to resolve the dispute.
Remedies may not be available for the IP owner to protect their rights and interest.
Filing an appeal to the Administrative court of Vietnam against the VNNIC’s decision on issuance of domain name registration to the local registration on the ground that the registration of this domain name by had infringed its rights and interest may be rejected by the administrative court on the following reasons:
- Decision 92 does not have particular provision requiring VNNIC to check and verify whether any registration of domain name has infringed rights of any third party. Under Decision 92, VNNIC may immediately grant the domain name registration to any registrant provided that he/she had filled complete registration forms and paid the related fees. It is the responsibility of the registrant to ensure that his/her registration shall not violate the laws nor infringe rights of any third party. These provisions are in line with international practice and they shall promote the development of domain names in Vietnam.
- When granting the domain name to the local registrant, VNNIC may have complied with the provisions of and prescribed procedures provided by Decision 92.
Filing a lawsuit against VNNIC not settling the dispute submitted to it may be rejected by the administrative court on the following reasons:
- Decision 92 authorizes VNNIC to settle disputes between the parties relating to the domain name registration. The nature of this settlement is mediatory settlement of disputes between parties and it is neither an administrative case nor administrative act which is under the jurisdiction of the administrative courts as provided by the Ordinance on procedures for settlement administrative cases (Article 11).
- As the case may be not true that VNNIC does not settle the case. VNNIC may still be in the process of settling the case but its handling is limited to encouraging and giving guidance for the concerned parties to negotiate with each other and due to lack of regulations governing the domain name dispute settlement so, as reported, VNNIC could not completely resolve the matter.
The remaining remedy may be filing a lawsuit against the domain name registrant on the ground of infringement of IP rights and interests of the owner in civil court. The effectiveness of this remedy may be questionable since it would be the first case in Vietnam that a Civil Court may rule an act constituted on the basis of a government lawful registration unlawful, not taking into account costly time involved, competency and transparency of the enforcement systems.
Utilising the current discrepancies of laws, cyber squatters recently have actively been registering various domain names using trade names and trade marks of well-known international and national firms. The wise choice now for IP owners may be registering necessary domain names with VNNIC to protect their proprietary names and marks.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.