Report Q173

in the name of the Chinese Group

Issues of co-existence of trademarks and domain names: public versus private international registration systems

1. Analysis of current domain name registration procedures

1.1 Nature of signs

What is the status of a domain name in your country? Does the registration of a domain
name confer exclusive rights to the proprietor? Can domain names be the subject of
dealings such as assignment, mortgage and the like?

Domain name in our country only refers to the character identification of hierarchical
structure that identifies and locates a computer on the Internet and corresponds to the IP address of this computer. His registration does not confer exclusive rights to the registrant.

It can be the subject of assignment, but not of mortgage.

1.2 Legislation

Is there any legislation in your country dealing specifically with domain names and the domain name registry? If so, please describe it.

Yes. The Ministry of Information Industry of China has issued "China Internet Domain
Name Regulations" on 1st august 2002. This regulation entered in force on 30th September.

1.3 Type of registry

Which organisation has been assigned responsibility for the ccTLD domain in your
country? Is this organisation a public or a private entity? If it is a private entity is it subject to a regulator? Is the registry's conduct of business (e.g. the setting of registration fees) subject to judicial or independent review?

In fact, the Ministry of Information Industry is responsible for the administration of the Internet domain names in China.

It authorized CNNIC (China Internet Information Center) as domain name registry. CNNIC
is a non-profit institution and does not register domain names itself. He is responsible for operating and administering the corresponding domain name system, maintaining the domain name database and authorizing the registrars to provide the domain name registration services.

Domain name registrars are private service providers.

1.4 National treatment

Does the applicant require legal or natural status in your country to register a domain name?

No, legal or national status in our country is not necessary to register a domain name.

1.5 Bars to registration

Is the domain name registry in your country entitled to reject applications on public policy grounds? If so, on which grounds (e.g. immorality or generic terms)?

Yes, domain name registrars can reject any of the following domain name registration application:

1. Those that are against the basic principles prescribed in the Constitution;

2. Those jeopardize national security, leak state secrets, intend to overturn the government, or disrupt of state integrity;

3. Those harm national honor and national interests;

4. Those instigate hostility or discrimination between different nationalities, or disrupt the national solidarity;

5. Those violate the state religion policies or propagate cult and feudal superstition;

6. Those spread rumors, disturb public order or disrupt social stability;

7. Those spread pornography, obscenity, gambling, violence, homicide, and terror or instigate crimes;

8. Those insult, libel against others and infringe other people's legal rights and interests;or

9. Other contents prohibited in laws, rules and administrative regulations.

1.6 Appeals

Does the applicant for a domain name have the right to appeal against the refusal of the registry to register a domain name? If so, to which entity and based on what kind of procedure (e.g. arbitration or administrative procedure)?

There is not appeal procedure to registrar's rejection, but the applicant can always go to court if he thinks that registrar abuses his power.

1.7 Publication, opposition and cancellation

Is the application for or registration of a domain name made public in your country? Is there any procedure available to third parties to oppose such application (prior to registration) or registration? If so, on what (relative or absolute) grounds (e.g. prior trademark registration or generic term) and based on what kind of procedure (e.g. arbitration or administrative procedure)? Is it possible for a registered domain name to be cancelled? If so, by whom and on what (relative or absolute) grounds (e.g. prior trademark registration or generic term)? Is it possible to request cancellation of a domain name based on general statutory law (e.g. unfair competition law)? Which procedure is followed, in the case that cancellation is required? Is the ccTLD registry liable for domain names which infringe trademarks?

Yes, registration of domain name is made public in a WWW server (www.cnnic.net.cn).
While there is not procedure to oppose the domain name registration, the domain name
can be cancelled after his registration by courts, arbitration or dispute resolution institutions.

The absolute grounds are listed in point 1.5, the owner of trademark, especially wellknown trademark, can apply to cancel domain name based on Trademark Law or Anti-
Unfair Competition Law.

The owner of trademark can go to civil court directly, to arbitration institutions if there is an arbitration agreement or to dispute resolution institutions anyway. The ccTLD registry is not liable for infringing domain name.

1.8 Maintaining the registration

Must use requirements be satisfied in order to maintain the domain name registration? If so, is there any definition of what constitutes use? Is a renewal fee payable, in addition to, or in place of, a maintenance fee?

Only maintenance fee but not use is required to maintain the domain name registration.

1.9 Generic Top-Level Domains (gTLDs)

Are gTLDs subject to regulatory control in your country? If so, in what ways? Are there any differences to the treatment of ccTLDs? If so, what are they?

No, gTLDs are not subject to our country's regulatory control.

2. Proposals for adoption of uniform rules

2.1 Nature of signs

Should the registration of a domain name confer exclusive rights to the proprietor?
Should domain names be subject of dealings such as assignment, mortgage and the
like?

For the moment, domain name is just an internet address, which cannot compare to traditional business identifier like as trademark, trade name or company name etc.

2.2 Legislation

Should legislation be enacted to deal specifically with domain names and domain name
registries?

Yes.

2.3 Type of registry

Do you think the domain name system should be administered by public or private entities?

If you think that the DNS should be administered by private entities should they only perform technical functions or should they also perform policy functions? If you think that they should only perform technical functions who should perform the policy functions?

What do you think Government's involvement in a privately administered DNS should
be? If the DNS is administered by private entities do you think that their actions should be subject to a regulator and to an independent review? If so, which institutions should perform these functions?

If you think that the DNS should be administered by public entities which institutions
should perform the technical and policy functions? Should the assignment of gTLDs and
the key internet co-ordination functions (e.g. the stable operation of the Internet's root server system) be performed by a treaty based multi-governmental organisation? If so, should an existing organisation such as WIPO or ITU be tasked with these functions or should a new one be created?

We think that the DNS should be administered by government in general, but for the efficiency reason, he should authorize the daily operation work like assignment of domain name to several private registrars. We are welcome to creating a treaty, which permits registration of gTLDs more cheap and quick.

2.4 National treatment

Do you think domain name registries should be entitled to impose restrictions on the
application process based on the nationality of the applicant?

No.

2.5 Bars to registration

Do you think domain name registries should be entitled to reject applications on public policy grounds? If so, on which grounds (e.g. immorality or generic terms)?
Yes, especially for immorality reason.

2.6 Appeals

Do you think that the applicant for a domain name should have the right to appeal against the refusal of the registry to register a domain name? If so, to which entity and based on what kind of procedure (e.g. arbitration or administrative procedure)?
Yes, he can go to court based on general civil procedure.

2.7 Publication, opposition and cancellation

Do you think that the application for or registration of a domain name should be made
public? Do you think that there should be a procedure available to third parties to oppose such application (prior to registration) or registration? If so, on what (relative or absolute) grounds (e.g. prior trademark registration or generic term) and based on what kind of procedure (e.g. arbitration or administrative procedure)? Do you think that it should be possible for a registered domain name to be cancelled? If so, by whom and on what (relative or absolute) grounds (e.g. prior trademark registration or generic term)? Do you think it should be possible to request cancellation of a domain name based on general statutory law (e.g. unfair competition law)? If so, which procedure should be followed? Do you think domain name registries should be liable for domain names which infringe trademarks?

Yes.

No, opposition procedure is not necessary.

Yes, improper domain name must be canceled. The owner of prior rights can apply to
cancel his registration. The same reason to reject registration as listed supra point 1.5 can apply.

2.8 Maintaining the registration

Do you think that use requirements should be satisfied in order to maintain the domain
name registration? If so, what should constitute use? Should a renewal fee be payable,
in addition to, or in place of, a maintenance fee?

The use should not be necessary to maintain the registration. The maintenance fee is
sufficient.

3. Assessment of the trademark registration system

Do you think that the publicly administered trademark registration system is adequate
and sufficiently efficient as compared with the privately administered system of domain name registration? If not, please explain.

No. The privately administered system applies the quasi-no examination principle, which is very important to keep the DNS quick, and easy-to -use character.

Summary

For the moment, while domain name is just an internet address that cannot compare to traditional business identifier like as trademark, trade name or company name, special legislation should be enacted. The DNS should be administered by government in general, but for the efficiency reason, he should authorize the daily operation work like assignment of domain name to several private registrars. We are welcome to creating a treaty which permits registration of gTLDs more cheap and quick. National treatment must be a basic principle. Public policy ground; especially immorality is a reason for rejection. The applicant should have right to go to court based on general civil procedure. While publication and cancellation procedure are necessary,
opposition is not. The use should not be necessary to maintain the registration. The
maintenance fee is sufficient. The privately administered system applies the quasi-no examination principle, which is very important to keep the DNS quick, and easy-to -use character.