The legal protection of Domain Name in China

Li Liang Jun[1]，Yang Guo Ming[2]

Abstract: The development of Internet has changed the whole social life profoundly. At the same time it brings a series of Issues. The issue of Domain Name is one of them. The dispute between Domain Name and traditional intellectual property has been focused universally. But the present law needs perfection. It can not follow the quick development of Internet. At present the law lays particular emphasis on the protection of traditional intellectual property while neglects the protection of Domain Name and this is unfair. This aim of the article is calling on people to strengthen the legal protection of Domain Name and make the relevant law and regulations perfect. This article point out the deficiency of Domain Name law，analysis the practice of the other country, and viewing from the legislation theory and practice, put forward some proposals and measures.

Key Words: Domain Name; Deficiency; Legal Protection;

The appearance and development of internet are profound technological revolutions of 20th century. Based on Communication technology and computer technology, the internet become a opening global interconnected cyberspace .It have the unprecedented influences to the global economy, politics, and the law. With the Internet in the global swift and violent development, the Domain Name, as one kind of the Internet address, has become one commercial value the symbol.

1．Legal principle theory of law analysis of Domain Name protection

（1）The Domain Name is a body under the intellectual property rights protection.

Whether the Domain Name is one kind of independent right, or whether is the intellectual property rights, the question is always argued by the scholars. Up to now, there is no national legislation to have the explicit stipulation regarding this. The theory has not reached the consensus opinion .At present there are several viewpoints about it.

First viewpoint, The Domain Name is not the independent intellectual property rights protection object. Some registered Domain Name after the commercial using and the propaganda gain the same effect according to traditional trademark ,these Domain Name may obtain the same protection as intellectual property rights(IPRs).Not all the Domain Name have the commercial value.

Second viewpoint, The Domain Name is independent intellectual property rights, maybe we can call it “domain right” should give it legal protection. The Domain Name right is refers to the Domain Name possessor have exclusive rights according to law. The reason is the Domain Name is a intelligence produces through peoples thinking, choosing or the creative work .With tradition intellectual property rights and so on the copyright, patent compares, the condition that make Domain Name intellectual property rights does not violate the existing intellectual property rights Principle, so it is a new kinds intellectual property rights.

Third viewpoint, Domain Name that belongs to intellectual property right is a kind of Industry and commerce symbol. Because it owns the same identification and differentiation function of the industry and commerce symbols as trade marks,business establishments and marks of origin. The Domain Name has become the intangible asset of enterprise. The right of the Domain Name after registering possesses these characters :the specialization of intellectual property rights,legal conform and timeliness.

According to our country law viewpoint, the core of right is benefit that should under law protection. Existence of the benefit is the premise and the inevitable result of the corresponding right. Internet space is sis one kind of resources. A Domain Name can be more than a mere Internet address. It is also an internet trademark. For this owner of Domain Name enjoys the certain independent benefit.

The author think, Domain Name should become the guest body under the protection of law. Although the second point mentioned that Domain Name is a kind of right But the author think it is proper that Domain Name should be a guest body of being safeguarded. Domain Name should be a kind of right---a kind of right which attaches to Domain Name. Domain Name and the traditional IPRs (Intellectual property rights) are different such as globalization and they have some similarity. Domain Name has the characteristic of traditional IPRs guest body: first, Domain Name is an intangible asset. So it has some potential commercial value so we think it should be safeguarded as copyright even the commercial brand doesn’t form. We think, the first and the third points confuse the Intellectual property rights and the Industrial property rights. Second, Domain Name is a kind of achievement of intelligence which contains human intelligence creation actions. The reason for being easily remembered is partly the applier of Domain Name design, choose, and create some characteristic Domain Name by heart which is a kind of creation work in nature. The composition of Domain Name is creative work which includes some intellectual work. Domain Name has some particular meaning even for the Abbreviation Company or personal name. According to traditional IPRs, distinguishing the condition of form of Domain Name doesn’t disobey the existing IPRs principle. The third, Domain Name has the characteristic which conform to the traditional IPRs.

（2）the analysis of Domain Name protection

The Domain Name should be given more wide and more strictly protection. Comparing Domain Name with the various intellectual property rights, it possesses the characters of globalization and timeliness, which enables it to get more protection. Assume that a trademark and a Domain Name deplete the same quantities of human labor, then they should have the same value. However, the prices of the two are different. Domain Name enables more people to visit unconsciously, and could appeal the same person to visit twice to learn more about the commodities, but in return it could enlarge its advertising effect as well. As far as trade mark is concerned, there is no such big effect. The using value of the two is different. One can get more profit if a Domain Name is properly used. Therefore, it should have higher price. As we know, trade marks are protected by the law of trade mark and anti-illegitimate competition. But at present, with respect to the Domain Name, it is not sufficiently protected. May be it is because that the Domain Name is an emerging thing, we haven’t correctly orientated it. The author assumes that the protection scope and strength given to Domain Name should be wider and stronger than trade marks. Even if there is no protection scope and strength for commercial value, it should be treated the same as for copyright. Or, we could resort to the punitive legal clauses.

2．The inadequacy and improvement of the protection of Domain Name

（1）current Domain Name protection and inadequacy in China

Up to now, related authorities in China publish several standard documents as follows, in order to solve the problems:《The current supervising methods for internet Domain Name registration》(hereafter referred to 《methods》as simply), 《Detailed regulations for internet Domain Name registering in China》,《resolving ways for internet disputes in China (try out) 》 ,《solutions for Domain Name disputes in China(try out)》,《internet Domain Name supervising methods in China》,《solutions for ICANN Domain Name disputes in China》,《advising notions on civil disputes of intellectual property right causing by Domain Name registering and using》(Beijing high court) and 《explanations of superior people’s court for some problems on judging applicable law for civil disputes referring internet Domain Name 》.

Although these documents are high in pertinence, they’re often scattered and lack of systematic characteristic. Therefore, they may still lead to confusion when it happens to meet with problems in practice. Loopholes and even malpractices lie in the setting of the law. Herein the author generally points out these malpractices:

a．When registering a Domain Name, disputes are prone to occur if not strictly examinating.

There is no strict request for contact means when an applicant is registering a Domain Name. Thus, it is hard for people with objections to make valid contact with the owners because the information is incorrect or unreliable. At the same time, it provides opportunities for the ones who are registering with evil intention.

b．Forbidding Domain Name transferring can not avoid disputing, in contrast it might even produce the behavior which violate the law.

Since Domain Name is a target that law protects and could gain profit through transferring, we should make sure that this kind of right be protected, otherwise it may cause defect, and bring about illegal trade.

c．There is deviation on the emphasis of dispute of Domain Name.

According to the 8th regulation of “The solution of dispute of Domain Name of ICANN”, the precondition supported to the appeal of the registered Domain Name is ①The Domain Name appealed and the com..