A unofficial English Translation

ECertain Directing Opinions Concerning Settling

the Civil Lawsuits of Intellectual Property Disputes

in Respect of Domain Name Registration and Use

Beijing Higher People’s Court Office
August 15, 2000

Domain name is the name and address used by the Internet users on the Internet. It has two functions: the technological and identifying functions. The technological function refers to the domain name registrant’s address on the Internet; the identifying function refers to the symbol on the Internet that represents the domain name registrant. Because of the complexity of the domain names, the intellectual property civil litigation (hereafter referred to as “domain name litigation”) caused by domain name registration and use are emerging. Different views in terms of how to apply laws exist in between law theorists and judicial practitioners and have impeded courts to settle these lawsuits timely and adequately. Therefore, we hereby forward, after the study and research, the following opinions to provide a reference with each court of the City in the trials.

1. Acceptance of Domain Name Litigation

The People’s Court shall accept the civil lawsuits filed by people whose domain name registration and use are in conflict with the names of registered trademarks, enterprises or other organizations where the lawsuit complies with the regulations stipulated in Article 108 of the Civil Litigation Law after the examination.

2. Jurisdiction of Domain Name Litigation

The Intermediate People’s Court holds the first trial for the domain name litigation. For litigation in which the damage compensation involved exceeds RMB3million yuan (about US$361,445), the Higher People’s Court shall hold the first trial.

The domain name litigation is under the jurisdiction of the people’s court in defendant’s abode or in the place where the infringing actions take place. When the domain name registration place is the same one where the infringing actions occur, the people’s court at the registration place may have the jurisdiction.

3. Reference Name of Domain Name Litigation

The reference name for domain name litigation shall be decided upon the judicial nature of the litigation. When the plaintiff sues for domain name infringement against his trademark right, the lawsuits shall be regarded as trademark right infringement litigation;

when the plaintiff sues for unfair competition, the reference name shall be decided upon the nature of the unfair competition.

4. Application of Law for Cybersquatting Others’ Famous Trademarks

Conducts like registering others’ famous trademarks in bad faith as domain names or cybersquatting others’ famous trademarks are against the principle of good faith and against the public business ethics. They are unfair competition conducts and shall be adjusted by applying the General Principles of Civil Law and the Anti-Unfair Competition Law.

5. Identification of Cybersquatting

To identify cybersquatting, one shall examine whether the conduct meets the following three essential conditions simultaneously: (1) the registered domain name is identical with the sample trademark of the trademark proprietor or similar enough to lead to misunderstanding; (2) the domain name holder does not possess any other prior rights for this name; (3) the substantial meaning of the registration and use in bad faith of the domain name refers to: the domain name holder offers to sell, lease or in other means assign the domain name to gain profits; or to induce Internet users to visit his own website or other online services by purposely confusing his domain name with other’s trademark or/and trade name in order to make profit; or to register in order to particularly prevent others from using trademarks and trade names as domain names; or to register the domain name in order to damage other’s business reputation.

6. Bearing of Legal Liability

For the domain name registration that constitutes unfair competition, the People’s Courts may order the domain name holder and/or user to cease the use, to apply for cancellation or change of the domain name. Those who cause damages to the owner of the lawful rights by implementing unfair competition conducts shall also be ordered compensations for the damage.

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