China (PRC) - Guidelines for Adjudication of Domain Name Disputes

Newsletters and Bulletins / February 2002 / China (PRC)

In order to assist in resolving domain name disputes, the Beijing High Court has, for the first time in China, issued "Guiding Opinions on the Adjudication of Civil Disputes Concerning Intellectual Property Caused by the Registration and Use of Domain Names". The Guiding Opinions concern the acceptance, jurisdiction, cause of action, applicable law, determination and liability in domain name disputes. The Opinions provide that the registration in bad faith of a domain name, which comprises a well-known trademark owned by a third party, constitutes an act of unfair competition and the general principles of civil law and anti-unfair competition law should be applied to such cases.

The Court established the following tests to determine whether the registration of a domain name constitutes an act of unfair competition:

i. that the domain name is identical or confusingly similar to a third party's trademark;

ii. that the domain name owner does not have any other prior rights; and

iii. that the domain name was registered in bad faith, i.e., the domain name owner has a) offered to sell, rent or transfer for gain, the domain name to the trademark owner; b) deliberately confused the domain name with the trademark or trade name of a third party to attract Internet users to its web site or use its online services; c) registered the domain name specifically for the purpose of preventing others from registering their trademark or trade name as a domain name; or d) registered the domain name in order to damage the reputation of the trademark owner.

Provided these tests are applied and satisfied, and the Court holds that the registration of the domain name constitutes an act of unfair competition, the Court will order the domain name owner to cease use and apply for withdrawal or cancellation of the domain name registration, as well as the payment of damages, if these are shown to have occurred.

These Guiding Opinions are to be followed by all Courts in Beijing. However, Courts in other parts of China are expected to apply the same or similar Guiding Opinions.

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