Several Issues Concerning the Application of Law to the Trial of Civil Dispute Cases Involving Computer Network Domain Names Interpretation

Foreign-related Domain Name Dispute Cases include cases in which one or both of the parties are foreigners, stateless persons, foreign enterprises or organizations or international organizations, or in which the domain name(s) in question is (are) registered abroad. For foreign-related Domain Name Dispute Cases occurring within the territory of the People's Republic of China, jurisdiction shall be determined according to the provisions of Section Four of the Civil Procedure Law.

Article 3: Cause of action for Domain Name Dispute Cases shall be determined in accordance with the character of the legal relationship of the dispute between the parties. The cause of action shall commence with the phrase "computer network domain name". If the character of the legal relationship of the dispute is difficult to determine, it may be generally referred to as a "computer network domain name dispute case".

Article 4: When trying a Domain Name Dispute Case, the people's court should determine that the defendant's registration and/or use, etc. of a domain name constitutes infringement or unfair competition if each of the following criteria is satisfied:

(1) the civil rights or interests for which the plaintiff seeks protection are legitimate and effective;

(2) the defendant's domain name or its main part constitutes a copy, imitation, translation or transliteration of a well-known trademark of the plaintiff; or it is identical with or similar to a registered trademark, domain name, etc. of the plaintiff to a degree sufficient to cause mistaken identification among the relevant public;

(3) the defendant does not enjoy rights or interests to the domain name or its main part, and has no justification to register and/or use the domain name; and

(4) the defendant's registration and/or use of the domain name is in bad faith.

Article 5: The people's court should determine that the defendant acted in bad faith if his conduct is shown to constitute any one of the following:

(1) for commercial purposes, registering another's well-known trademark as a domain name;

(2) for commercial purposes, registering and/or using a domain name that is the same as or similar to the plaintiff's registered trademark, domain name, etc., and deliberately causing confusion with the products and/or services provided by the plaintiff or with the plaintiff's website in order to mislead network users into accessing one's own website or another online site;

(3) having offered to sell, lease or otherwise transfer the domain name at a high price and obtained unfair benefits;

(4) the defendant neither uses nor intends to use the domain name after registration, but intentionally prevents the registration of the domain name by the person holding rights therein;

(5) other situations involving bad faith.

If the defendant produces evidence that the domain name(s) he owns has (have) gained a certain degree of notoriety before the dispute occurred, and is (are) distinct from the plaintiff's registered trademark(s), domain name(s), etc., or if there are other circumstances sufficient to show that he has not acted in bad faith, the people's court is not required to determine that the defendant acted in bad faith.

Article 6: When trying a Domain Name Dispute Case, the people's court may determine according to law whether a registered trademark involved is well-known or not based on a party's requests and the actual circumstances of the case.

Article 7: When trying a Domain Name Dispute Case that satisfies the criteria set forth in Article 4 hereof and, according to the relevant law(s), constitutes infringement, the people's court should apply the stipulations of the corresponding law(s). If the case constitutes unfair competition, the people's court may apply Article 4 of the Civil Law General Principles and the first paragraph of Article 2 of the Anti-unfair Competition Law.

Foreign-related Domain Name Dispute Cases should be handled according to the relevant provisions of Part Eight of the Civil Procedure Law.

Article 8: Once the people's court determines that conduct such as the registration and/or use of a domain name constitutes infringement or unfair competition, it may order the defendant to cease the infringement and/or deregister the domain name, or, at the request of the plaintiff, order that the domain name be registered and used by the plaintiff. If the said conduct has caused actual damage to the holder of the rights, the people's court may order the defendant to pay damages.