Understanding Domain Conflict Resolution in China’s .CN Top-Level Domain
The .cn is the primary identifier for China and is one of the most used domains in the world with over 20 million registrations as of December 2022. The China Internet Network Information Center (CNNIC) manages and oversees the registration, administration, and regulation of the .cn domain, ensuring its stability, security, and proper functioning within China's internet infrastructure.
While trademarks and domain names are crucial assets for preserving a company's identity, domain registrations often overlook potential trademark conflicts, operating on a first-come, first-served basis. Consequently, conflicts arise when registered domains encroach upon existing trademarks, leading to legal entanglements. Despite taking measures to curb the practice, cybersquatting has also become an increasingly prevalent issue in China and poses significant challenges for trademark holders and businesses in protecting their intellectual property rights in the online sphere. It can lead to lost customers, revenue, and brand reputation, altering public perception, causing legal and financial strain due to legal battles and costs involved in recovery.
(Please refer to the List of Abbreviations below for explanations of the acronyms used in this blog.)
How to Address Domain Infringement in China
As one of the world's largest markets, within the context of China's expansive and rapidly evolving online environment, grappling with domain infringement has become an increasingly pressing concern for businesses, particularly with regard to the protection of trademarks, domain names, and intellectual property rights. Essentially, Complainants have three primary recourses available for tackling alleged domain name violations in China:
Direct Contact: The trademark owner can directly talk to the domain registrant, explaining the trademark violation and potential legal consequences. Though not always effective, any response, even if impolite or proposing a domain sale, can be evidence of bad faith for a future filing under the China Network Information Center Dispute Resolution Policy (CNDRP).
Request Registrar's Help: Asking the registrar to cancel the domain due to infringement is an option. Yet, proving the domain's illegality to the registrar might be hard, especially if it's not used for illegal content or phishing.
Filing a CNDRP Complaint: Filing a complaint under the China Network Information Center Dispute Resolution Policy (CNDRP) involves a structured process governed by specific rules. It's a formal way to dispute a domain name registration that allegedly infringes on a trademark. Complainants are required to follow specific procedures and pay fees based on the number of disputed domain names and panelists involved in resolving the case. This process includes submitting evidence, stating the grounds for the dispute, and presenting arguments to support the claim of trademark infringement. So, let's explore this in more detail.
How to File a Complaint
If your organization believes its rights have been infringed upon by a domain name registered by another party, you can file a complaint with one of the recognized arbitration bodies. These include the China International Economic and Trade Arbitration Commission (CIETAC) and the Hong Kong International Arbitration Centre (HKIAC), which handles arbitration and dispute resolution in Hong Kong. Both entities are accredited by CNNIC and follow CNDRP procedural guidelines. This is the localized version of the global Uniform Domain Name Dispute Resolution Policy (UDRP).
Since August 1, 2019, the World Intellectual Property Organization (WIPO) has been endorsed by the Chinese administration as the only non-Chinese arbitration entity approved to handle conflicts associated with .CN domain names. Each Dispute Resolution Center certified by WIPO employs the same arbitration procedures outlined by the Chinese registry's CNDRP. This offers a structured mechanism that guarantees fair and efficient resolution of conflicts between trademark owners and domain name registrants, addressing issues such as trademark infringements, cybersquatting, and other domain-related conflicts.
Resolving conflicts concerning .cn domains in China entails a systematic approach:
1) Choose a Certified Dispute Resolution Provider: Complainants must first select one of the CNNIC-accredited Dispute Resolution Providers, CIETAC, HKIAC or WIPO.
2) Prepare the Case Evidence: When initiating a domain name complaint in China under the .CN domain extension Dispute Resolution Policy (CNDRP), gathering substantial evidence is crucial. Under CNDRP guidelines, filing a complaint centers around three primary factors:
Bad Faith Usage: This denotes instances where the domain name was registered and is being used with malicious intent or unethical motives. It involves scenarios in which the domain holder deliberately takes advantage of another entity's trademark by registering a domain name identical or similar to the trademark, intending to sell it at an inflated price or disrupt the business operations of the trademark owner.
Trademark Infringement: This refers to instances where the domain name bears a striking similarity to your established trademark or service mark. Such similarity, whether in spelling, pronunciation, or appearance, could lead to confusion among consumers, potentially diverting traffic intended for your business to the infringing website.
Lack of Legitimate Interest: This situation occurs when the holder of the domain name lacks a genuine justification or rightful claim to the domain. Typically, this lack of legitimate interest is associated with practices like cybersquatting, where individuals or entities register domain names purely to profit from the goodwill or reputation associated with an established brand. In such cases, the domain holder does not have a history of using or developing the domain for a legitimate purpose or business activity, implying an absence of valid rights or interests regarding the domain.
To file complaint against an alleged domain violation, you must compile compelling proof that the disputed domain name either closely imitates or causes confusion with your trademark based on the above criteria. You should also spotlight any evidence that indicates the absence of legitimate rights owned by the current domain holder.
3) Submit the Complaint From: Present your formal complaint to the selected Dispute Resolution Provider and ensure that your submission adheres to each entity's specific guidelines, including all necessary documentation and evidence.
4) Dispute Resolution Fees: Fees are part of dispute resolution processes and usually need to be paid in US Dollars to the relevant organization. Generally, the Complainant covers these fees, but in cases of a larger panel, the Respondent might be required to share the costs. Keep in mind, these fees usually don't include legal representation expenses, and any extra bank charges or transfer fees are the payer's responsibility.
How the Dispute Resolution Process Works in China
Certified Dispute Resolution Providers are required to form a panel of impartial experts proficient in internet practices and legal matters and must make a decision on the credibility of the Complaint within 14 days of their appointment. The process encourages parties to submit their complaints and responses online, enabling the professional arbitrators to review and evaluate the case to make their decisions. The case administrator is responsible for overseeing and managing all aspects of the case proceedings through the relevant online platforms (CIETAC, HKIAC or WIPO). Throughout resolution proceedings, the language primarily used is Chinese, although an alternative language can be adopted if both parties agree. Additionally, both complainants and respondents are responsible for providing the burden of proof for their claims, with a focus on transparency and accountability throughout the resolution process.
Mediation and Arbitration
Arbitration comprises several essential elements. Grounds for complaint and evidence required to establish bad faith registration are critical considerations. It should also be noted that, like the UDRP, the CNDRP provides an efficient mechanism for resolving domain name disputes. However, it diverges from the UDRP in several aspects, most notably:
Rights covered: CNDRP refers to 'civil rights or interests,' expanding beyond trademark rights under UDRP and including copyright and unfair competition protections.
Bad faith: CNDRP requires proof of either registration or use of the domain name in bad faith, whereas UDRP demands evidence for both.
Complaint filing: CIETAC and HKIAC won't accept complaints for domain names registered for over three years. If not filed within this period, brand owners must resort to Chinese courts for legal action. This underscores the importance of promptly initiating disputes when a clear domain infringement is identified.
As part of the mediation process, once the Dispute Resolution Provider has appointed a panel of experts, involved parties are presented with an opportunity to reach a settlement or the process will progress to the Arbitration stage.
Enforcement of The Decision
Decisions rely on factual evidence presented during the proceedings. If the complaint is upheld, there are two remedies available: the domain name may be canceled or transferred. If an Administrative Panel decides to cancel or transfer the domain name, the registrar is required to wait for ten business days from the notification before carrying out the decision. This gives the respondent time to delay the implementation of the Panel's decision by submitting legal proof of filing a lawsuit against the Complainant. Enforcement follows specific procedures, providing avenues for legal actions or arbitration if parties disagree.
Scams Targeting China's Domain Owners
Despite being initially reported in 2010, domain holders in China should also be aware of an ongoing scam involving fraudulent notices sent to domain owners by perpetrators posing as CNNIC (China Internet Network Information Center). The deceptive messages typically claim that another entity has applied for a similar or identical domain name, urging immediate action to prevent registration disputes or legal repercussions. The scam urges recipients to register additional domains or pay inflated fees to secure their original domain. If you are unsure about a particular communication and to safeguard against such scams, you should consult official channels or legal counsel if uncertain about domain conflicts or dispute resolution procedures in China.
Resolving disputes related to the .cn domain in China demands a strategic approach and a clear understanding of the available options. Filing a CNDRP complaint requires adherence to specific requirements and does incur certain costs, but the process encourages transparency and is designed to ensure a fair resolution for trademark-related disputes. Keep in mind, that the procedures in China differ slightly from those following the international standard. Navigating these routes requires a tailored approach and highlights the importance of informed decisions and a proactive stance. Ultimately it is a process that strives to uphold the integrity of trademark rights within the domain space, promoting a more secure and reliable online environment.
Step-by-step Tutorial to Filing a .CN Complaint
STEP 1: Domain name infringement
The Complainant discovers a domain name infringement. Disputes typically involve cases where:
The domain is similar to a trademark or service mark.
The domain owner has no rights or legitimate interests.
The domain is being used in bad faith.
STEP 2: Form submission and payment
The Complainant submits the Coversheet available from the ADNDRC or WIPO websites, along with necessary case documents to the relevant Dispute Resolution Provider. Payment of the appropriate fee is also required at this stage.
STEP 3: Compliance check
The Dispute Resolution Provider reviews the submitted form to ensure it complies with guidelines. If it meets requirements, the process proceeds; if not, the Complainant has 5 days to rectify any deficiencies or the complaint will be withdrawn.
STEP 4: Notification to respondent and Registrar
The Dispute Resolution Provider notifies both the Respondent (current domain owner) and the Registrar (CNNIC) about the filed complaint.
STEP 5: Response from respondent: TIMELINE: 20 days
The Respondent is required to submit a standardized Response Form within a 20-day period, presenting their case and defenses.
STEP 6: Panel appointment: TIMELINE: 5 days
Within 5 days, the Dispute Resolution Provider appoints a panel of experts.
STEP 7: Panel Decision: TIMELINE: 14 days
The Dispute Resolution Provider appoints an administrative panel that will hear and decide on the dispute.
STEP 8: Communication of Decision: TIMELINE: 10 days
The Dispute Resolution Provider communicates the panel's decision within 3 days to all involved parties. There's a 7-day period for any necessary corrections to made. Decisions are typically made public on the relevant online platform, except for instances where the panel opts to modify parts of its decision prior to publication.
Total timeline: Up to 49 days from formal acceptance of the complaint.
This structured process ensures fair and timely resolution of disputes related to .cn domains while offering a transparent framework for both the Complainant and the Respondent.
List of Abbreviations:
.cn: Top-Level Domain (ccTLD) - The specific top-level domain for China, administered by the appropriate authorities for domains within the country.
CNNIC: China Internet Network Information Center - Oversees internet affairs and manages domain registrations in China.
CNDRP: China Network Information Center Dispute Resolution Policy - Governs disputes related to domain names in China.
UDRP: Uniform Domain Name Dispute Resolution Policy - An international policy resolving disputes over domain names.
WIPO: World Intellectual Property Organization - Handles international issues concerning intellectual property rights.
CIETAC: China International Economic and Trade Arbitration Commission - Deals with arbitration in economic and trade matters in China.
HKIAC: Hong Kong International Arbitration Centre - Handles arbitration and dispute resolution in Hong Kong.
ADNDRC: Asian Domain Name Dispute Resolution Centre is an alliance established jointly by CIETAC and HKIAC, operating as their Beijing and Hong Kong offices. It is both an umbrella organization and a dispute resolution platform, overseeing domain name dispute resolution services within the Asian region.
Sources: Which Countries Have the Most Popular Top-Level Domains in the World?