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The domain name as the domain name registrar represents its own logo on the Internet, and has strong identification. The string used may be the same or approximate as the trademark of others. Trademarks conflict.
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The domain name as the domain name register represents its own logo on the Internet. The same or approximation, this will conflict with the trademark with recognition functions. Generally speaking, there are three ways to solve the domain name disputes: conflict resolution procedures, litigation procedures and arbitration procedures. Due to the unpredictability of domain name disputes, there are fewer applications for arbitration procedures, and more are applicable to conflict resolution procedures and litigation procedures. This article intends to combine laws and cases to focus on the resolution path of the conflict between the two.
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Conflict between the trademark and in the post -domain name
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[ 123] (1) The conflict between the registered trademark and the post -domain name that has been registered \u0026 nbsp;
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(1) Conflicting solution program introduction
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In addition to the traditional lawsuit or arbitration, the trademark owner can also resolve disputes through domain name disputes. The domain name dispute solution procedure is mainly to resolve the domain name ownership dispute. The final ruling will only determine whether the complaint is established. Liability for compensation. In addition, the procedure ruling is high, and it takes 3-4 months from the procedure to start to the ruling. The procedure is a ruling, but the complainant or the respondent refuses to accept the results of the ruling. After receiving the notice of the ruling of the administrative expert group of the institution, or before the execution of the ruling, the corresponding lawsuit or arbitration may be filed for the controversial domain name program. \u0026 nbsp;
The international top domain name (such as \u0026 ldquo; .com \u0026 rdquo;) and the top domain name (such as \u0026 ldquo; .cn \u0026 rdquo;) existDomestic name dispute solutions and solutions are different from the solution agencies. \u0026 Ldquo; .com \u0026 rdquo;, \u0026 ldquo; .cn \u0026 rdquo; top -level domain name disputes were more common in China. As an example, it introduced: \u0026 ldquo; .com \u0026 rdquo; domain name: The rules of dispute resolution are the \"Unified Domain Dispute Solutions Policies\", \"The Rules of the Unified Domain Dispute Solutions Policy\" formulated by ICANN, and the implementation of the Asian domain name dispute settlement center \"Supplementary Rules for Unified Domestic Disputes Solving Policies\". The solution agency is: WIPO, Asian domain name dispute resolution center (with Hong Kong and Beijing offices). The domain name controversial complainant must meet all the requirements stipulated in Article 4 of the \"Unified Domestic Dispute Dispute Resolution Policy\", and the complaint can be established.
\u0026 ldquo; .cn \u0026 rdquo; domain name: its applicable rules are the \"National Top Domain Dispute Solution\" formulated by the China Internet Information Center, the top of the national top -level national name \"Domain Dispute Solving Procedure Rules\", etc., the solution institutions are: the China International Economic and Trade Arbitration Commission Domain Dispute Solutions Center, Hong Kong International Arbitration Center, etc. The complainant must meet all the requirements stipulated in Article 8 of the \"Top Domain Dispute Dispute Solution\", and the complaint can be established.
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[2) Solving the Internet domain name and trademark through the conflict solution process solution Conflict problem
[2) Solving the Internet domain name and trademark through the conflict solution process solution Conflict problem \u0026 nbsp; Regardless of whether the registered registner in the post -domain name has actually carried out business activities, the per capita registered trademark right can pass the domain name through the domain name. Dispute solution procedures require domain name transfer or cancellation.
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In the case of complaining to the disputed domain name based on the foundation of the trademark right, it can be based on Article 4 Or Article 8 of the \"National Top Domestic Dispute Dispute Solution\", the two resolution rules have no significant differences in complaints. Trademarks, and \"National Top Domestic Dispute Dispute Solutions\" does not have corresponding regionality in the first trademark.
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In addition to the differences in regional requirements of trademarks, in summary, the domain name of the complaint must meet the following requirements:
I. The approximation of the same trademark with the complaint that the trademark first or composition is sufficient to cause confusion;
II. It does not enjoy legitimate rights and interests for domain names or its main part; III. The domain name holder of the complaint is malicious to register or use the domain name.
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At the same time, the above two solutions also clarified the specific situation that the domain name holder had maliciously, and the two regulations were roughly the same. For example: ① The domain name holder is to sell, rent or transfer the domain name in other ways to obtain improper benefits; ② domain name registration is to prevent others from using it on the Internet to enjoy it. Trademark rights, etc.; ③ domain name registration is to damage the reputation of the complainant, or cause public confusion and misunderstanding. \u0026 nbsp;
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2. To solve the problem of conflict between Internet domain names and trademark rights through litigation procedures
\u0026 nbsp ; In addition to the domain name dispute solution procedure, the owner of the first trademark can also resolve the dispute through litigation procedures. \u0026 nbsp;
The \"Supreme People's Court's Explanation of Civil Disputes on Computer Network Domain Names on Civil Disputes in the Supreme People's Court\" (hereinafter referred to as \u0026 ldquo; Internet domain name interpretation \u0026 rdquo; Article 4: When the court trials the domain name dispute, the domain name registrant registered, the use of domain names and other behaviors constitutes four requirements for infringement or improper competition, namely
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(1) The civil rights and interests requested by the plaintiff are legal and valid; (2) The domain name or its main part of the defendant's domain name or its main part of the replication, imitation, translation or translation of the plaintiff's well -known trademark; Or the same or approximately similar to the plaintiff's registered trademark, domain name, etc., which is enough to cause misunderstandings from the relevant public;
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The Interpretation of the Network Domain Name does not specifically specifically applies how to distinguish between infringement or improper competition. However, the \"Interpretation of Several Issues of the Application of Laws on the Application of Cases of Trademark Civil Disputes in the Supreme People's Court\" (hereinafter referred to as \u0026 ldquo; Trademark civil dispute explanation \u0026 rdquo;) paragraph 1 (3) provides that the same or similar trademark registered trademarks will be registered as others The e -commerce registered as the domain name and the e -commerce of related commodity transactions through this domain name can easily make the relevant public misunderstanding that is a trademark infringement. At the same time, Article 4 of the Beijing Higher People's Court's \"Several Guidance on Trial of Domain Registration and Use of Intellectual Property Civil Disputes\" stipulates \u0026 ldquo; The principle of credit, violating the recognized commercial ethics, is an unfair competition. It should be applied to the adjustment of civil law and the adjustment of the anti -unfair competition law. \u0026 rdquo; judicial practiceAmong them, most courts believe that the domain name registrant will register as a trademark (whether the trademark is a well -known trademark) as a domain name, which does not constitute a trademark infringement. ; Anti -Fair Competition Act \u0026 rdquo;) regulate. In (2012) Case No. 4609 [2], the court believes that only registering the domain name, but it does not allow the domain name to establish a source of instructions with any product or service. Power does not belong to the specific unfair competition acts stipulated in the Anti -Unfair Competition Law. Finally, Article 2 of the Anti -Unfair Competition Law is applied to determine that the behavior constitutes improper competition.
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At the same time, when the registered behavior of the registered domain registered person constitutes improper competition, the well -known trademark is also determined that the domain name registrar malicious Important considerations. According to the \"Interpretation of the Network Domain Name\", as long as the commercial purpose is registered as a domain name for business purposes, the registered domain name registrar may be maliciously identified by the court. (2021) In the case of Jingmin No. 554 [3], the court determined that the trademark formed a well -known trademark in category 42, although the domain name \u0026 ldquo; dongdao; It was not used on the 42nd service items. The court still applied Article 5 of the \"Interpretation of the Network Domain\". The final identification of the defendant's registered domain name \u0026 ldquo; dongdaounion.com \u0026 rdquo; \u0026 ldquo; DongdaoLianmeng.com \u0026 rdquo; \u0026 nbsp;
The author believes that if the domain registered registrar will register as a domain name in the first trademark and conduct relevant e -commerce activities through it, you can also refer to the \"People's Republic of China of the People's Republic of China \"Trademark Law\" (hereinafter referred to as \u0026 ldquo; trademark law \u0026 rdquo;) and \"Interpretation of Trademark Civil Disputes\" to regulate the method of trademark infringement, that is, the domain registered registered person registered the same or similar character registration of others first. The behavior of e -commerce activities in the same or similar commodity/service constitutes trademark infringement. In this case, cross -class protection can be applied for well -known trademarks. \u0026 nbsp;
(2) The conflict between the use of trademarks and in the post -domain name without registered
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Whether it is applicable to the domain nameThe solution to the procedure or the litigation process. If it is based on the use of unregistered trademarks as a claim at the foundation of the precedent, the awareness of the trademark is required, but the degree of the degree of the awareness of the trademark is different.
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1. Solve the conflict of the Internet domain name and trademark right through the conflict \u0026 ldquo; .com \u0026 rdquo; domain name dispute solution procedure: The \"Unified Domestic Name Controversy Policy\" stipulates that the complainant must obtain the right to register the trademark first. However, for the protection of unregistered trademarks, \u0026 ldquo; Rochem- Chinese.com \u0026 rdquo; Domain name [Case number: cn-1901282] [4] confirmed the aforementioned \u0026 ldquo; registered trademark \u0026 \u200b\u200brdquo; Trademark \u0026 \u200b\u200brdquo; and the complainant needs to prove the fact that the trademark is using the trademark first. Later, it was determined that the complainant's need to prove that the unregistered trademark had become a significant identification of identifiable complaints or services, but it did not require the complainant to prove that it had reached a well -known degree.
\u0026 ldquo; cuddlybird.com \u0026 rdquo; Domain name case [Cn-2001362] [5], the complainant used online publicity videos and product awards as a Evidence, it proves that the complainant has turned the CUDDLY BIRD trademark into a significant identification of the complainant's product through the use of the behavior. After that, the expert group found that even if the trademark was not registered, if the trademark was used to identify the product or service of the product or service, the complainant also enjoys the right of trademark rights for the unregistered trademark.
\u0026 nbsp; \u0026 ldquo; .cn \u0026 rdquo; Essence The object of the civil rights includes unregistered trademarks. In practice, the first ruling requires a certain reputation that the unregistered trademark used first.
\u0026 nbsp; In \u0026 ldaseva.cn \u0026 rdquo; Domain name [CND-2022000010] [6] People should prove that their business logo registration or use of a certain reputation has been registered earlier than the disputed domain name registration. Since the complainant has not submitted the relevant popularity evidence, nor did it submit to the use of \u0026 ldquo; ODA in ChinaEvidence of SEVA \u0026 rdquo; registered enterprise name. In the end, the expert group rejected the complaint from the complaint.
\u0026 nbsp; 2. Solve the conflict between Internet domain names and trademark rights through litigation procedures
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In the litigation process, whether the trademark that has been used but not registered can be identified as the ancestors' rights and interests, you can refer to the relevant provisions of the Anti -Unfair Competition Law and the Trademark Law Essence (2010) In the case of the first Chinese character No. 11713 [7], although the plaintiff had not obtained the right of \u0026 ldquo; Telun Su \u0026 rdquo; ; Telun Su \u0026 rdquo; Milk products have become a certain market awareness in China, the products known to the relevant public, and constitute the \u0026 ldquo; well -known goods \u0026 rdquo; The behavior of using dispute domain names constitutes an unfair competition for the plaintiff.
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02. Conflict between registering domain names and rear trademarks
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At present, it has not been legal in law \u0026 ldquo; domain name right \u0026 rdquo; It is believed that if the domain name is registered at the same time, if you have the following four requirements, it can also be identified as the \u0026 ldquo in Article 32 of the Trademark Law. This is to mention the trademark objection procedure or invalidation procedure to the post -trademark. The four requirements are: \u0026 nbsp; (1) The domain name claimed by the domain name is used in the use of the trademark; [ [
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[ [ 123] (2) The same or basically the same or basically the same or basically the same or basically the same or basically the same as the logo claimed. And to know or know that the applicant of the trademark of the trademark;
(4) The domain name is used and used to obtain the reputation and the goods designated by the reputation and the defense trademark. Commodities, or have strong correlation.
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in the domainIn terms of the recognition of the reputation, the court will generally adopt evidence materials such as online reports, data from third -party institutions, and certifications in third -party institutions. In the case of (2017) Jing 73, in the case of No. 2369 [9], the court adopted a third party's domain name \u0026 ldquo; paperpass.org \u0026 rdquo; Evidences such as reports and recommendations, national libraries' documentation certificates and website access volume have been found that the domain name has a certain reputation in the date before the application for the trademark of the claim. And finally determined that the claim trademark damaged the right of the third person in the first domain name.
\u0026 nbsp; In addition to the proposition \u0026 ldquo; domain name right \u0026 rdquo; (3) Explanation of the Supreme People's Court on the application of several issues of the Supreme People's Court on the application of the \"Anti -Unfair Competition Law of the People's Republic of China\", and claims that the use of the use of subsequent trademark owners constituted improper competition. Determine whether the use of the behavior of the post trademark rights constitutes an unfair competition, and needs to meet the following requirements: (1) The operator uses a certain identity of the main part of the influential domain name of the other person without authorization; (2) its behavior is enough to make people mistaken It is considered to be a product or a specific connection with others.
