On 14 February 2006, China Internet Network Information Centre ("CNNIC") published a new dispute resolution policy ("2006 Policy") for .cn domain names, which will come into force on 17 March 2006. The purpose of the amendments to the current .cn dispute resolution policy is to balance the benefits of trade mark owners with those of domain name registrants.
The 2006 Policy introduces three major amendments to the existing .cn dispute resolution policy: a time bar for domain name disputes; a narrowing of the scope of the bad faith requirement; and further clarification on the requirements for a domain name registrant to prove it has legitimate interests in the disputed domain name.
Time bar for filing domain name disputes
One of the most important amendments in the 2006 Policy is that after 17 March 2006 it will no longer be possible to file complaints in respect of .cn domain names which have been registered for at least 2 years. The only recourse for trade mark or brand owners in such situations will be to file a civil action with the People's Courts in the PRC.
Narrowing of "bad faith" provision
Another significant change which will be brought about by the 2006 Policy is a narrowing of the bad faith requirement. The current wording "registering for the purpose of selling, hiring or assigning to obtain unjustified benefits" has been amended to read "registering for the purpose of selling, hiring or assigning to the civil right owner or to their competitors to obtain unjustified benefits". This means that evidence obtained by means of anonymous approaches will no longer be sufficient to prove bad faith. Instead, evidence of offers to sell, hire or assign, directed at the right owner or a competitor will be required.
Clarification of circumstances which are deemed sufficient for registrant to prove legitimate interest
The 2006 Policy also offers clarification on the circumstances in which a registrant can rebut a complainant's claim that the registrant has no legitimate interests in a disputed domain name.
Any of the following circumstances will be regarded as sufficient to prove a legitimate interest in a disputed domain name:
i) the domain name registrant has used the disputed domain name or corresponding names in good faith to provide goods or services (in other words, the disputed domain name resolves to an active website from where the registrant provides goods and services);
ii) the domain name registrant has not obtained any trade or service mark in respect of the disputed domain name, but has acquired a certain reputation in respect of the domain name through use (in other words, the domain name resolves to an active website);
iii) the domain name registrant has legitimately used the disputed domain name for commercial or non-commercial purposes and has used it without the intention of obtaining commercial gain or to mislead the public (in other words, such use does not seek to take a free ride on the complainant's brand).
The upshot of this change is that provided the domain name resolves to an active website, it will now be more difficult for a complainant to argue that the registrant has no legitimate interests in the disputed domain name.
Conclusion
The 2006 Policy will make it more difficult for trade mark owners to recover .cn domain names. Brand owners are advised to conduct a domain name audit and file any outstanding domain name disputes as soon as possible and in any event before the new amendments come into force on 17 March 2006.
After 17 March 2006, brand owners should be vigilant and conduct periodical domain name searches to ensure that domain name complaints are filed in a timely manner and in any event before the expiry of the 2 year period since the registration of the domain name. A careful assessment of the evidence of bad faith and the interests acquired by the registrant in the disputed domain name, should be undertaken prior to the filing of any .cn domain name complaint after 17 March 2006.
The authors are partner and trainee solicitor respectively working in the Technology Media and Telecoms Group of Lovells in Hong Kong. If you have any questions in relation to this article, please contact either author at Gabriela.kennedy@lovells.com or Jennifer.lam@lovells.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
