(By Albert Chen) Currently, the main dispute resolution channels for domain name disputes include semi-administrative settlement and judicial settlement. In terms of regulation, the Measures for Settlement of Domain Name Disputes (the “Measures”) were promulgated as early as 2002 and then amended in 2006. The Measures are the primary basis for semi-administrative settlement of domain name dispute. As to judicial methods, the main basis is the Interpretation on Several Issues Concerning Application of Law in the Hearing of Computer Network Civil Disputes” (the “Interpretation”) promulgated by the Supreme People’s Court.
Today’s post will provide a brief introduction to the two main methods of dispute settlement and its features.
I. The semi-administrative method led by the CNNIC
The China Internet Network Information Center (“CNNIC”) is currently the main authority governing domain names. Established on June 3, 1997, CNNIC is a non-profit administration and service institution, which is led in business by the Ministry of Industry and Information Technology (“MIIT”) and in administrative management by the China Academy of Sciences. Therefore, the CNNIC is special for having both business and administrative elements, which is why domain dispute resolution method led by the CNNIC can be called a “semi-administrative” method.
The disputes governed by the CNNIC are handled by the Domain Name Dispute Resolution Center of the China International Economic & Trade Arbitration Center (the “Center”). The Center has jurisdiction over all disputes concerning .cn and Chinese domain names, as well as some wireless and short message domain name disputes. Additionally, the aforesaid domain name must have been registered for less than two years.
The main dispute resolution procedure used by the Group is the “Expert Group Program” (the “Program”). According to the Measures and relevant regulations, the complainant may submit the complaint materials in electronic format to the Center to initiate the Program. The aforesaid materials must include the specific claims, the complainant’s contact information, the expected number of experts to hear the dispute, the identity of the selected expert(s), the defendant’s contact information, information on the disputed domain name, reasons for the complaint, and relevant declarations. In principle, the number of experts appointed to the expert group is determined by the complainant, who therefore bears the costs of the experts. When the complainant chooses only one expert, while the defendant chooses three experts to compose the tribunal, the dispute would be entrusted to a three-man group for the final settlement, and half of the resulting fees would be borne by the defendant.
After receiving the complaint from the complainant, the Center will transfer it to the defendant so that the defendant can prepare a reply. The complaint and reply are the only materials considered in the final decision, unless the experts demand further documents for their consideration. In the meantime, the group holds a “document trial,” unless the group believes a hearing is requires, and the parties to the suit are willing to bear the relevant fees.
The expert group makes its decision within fourteen days after being composed. but in some special situations, the group will prolong the period. The adjudication is made and sent in electronic format to the parties, and when the complainant wins the case, the decision might state that the domain name will be canceled or transferred to the complainant.
It must be noted that before, during, or after the experts’ decision, the parties may file the dispute for litigation or arbitration. During the process of expert deliberation, the initiation or continuation of arbitration or litigation will not necessarily pause or terminate the expert program. Once a binding decision has been made in arbitration or litigation, however, the expert group will stop its procedure. Even if the group has made a judgment, it cannot fight against decisions of an arbitration committee or court.
II. The Judicial method
In addition to semi-administrative settlement through the CNNIC, the other main method of domain name dispute settlement is bringing suit in court. Compared to the Program, the two main features of the lawsuit are: 1) there is no limitation on the domain registration date, only whether the dispute is within the lawsuit filing period; and 2) disputes are not limited to .cn or Chinese domain names but can include disputes over .com and .net domain names.
Lawsuits do, however, have some disadvantages. First, lawsuits have long duration, normally six months for the first instance and three months for the second instance. Second, the fees paid for in lawsuits are higher than those in CNNIC settlement.
It deserves attention that currently litigation has become a last ditch for defendants or effective check on the complainant’s complaint. In practice, after the defendant loses in the administrative procedure, it always takes the issue to court and demands a delay in implementing the expert decision using the notice of acceptance from the court. On the other hand, most lawsuits are filed in the name of trademark infringement or unfair competition, rather than directly filed in the name of the domain name infringement.