A Study On The Balance Of Interests In The International Domain Name Dispute Resolution Mechanisms

It is an important cyber law problem and a pioneering hotspot that how to resolve the international domain name disputes. The thesis examines the balance of interests in the dispute resolution mechanisms systematically, taking the theory of balance of interests as the foundation, and raises the author’s opinions. The whole thesis is divided into 5 chapters, with the introduction and the epilogue.The introduction outlines the backgrounds and value of the topic, surveys the status quo in this respect and lists the approaches employed in the thesis.Chapter 1 fully illuminates the content of the theory of balance of interests. The law is a method or instrument that can help people to realize certain purposes. Interests are the resource of laws. The basic purpose of laws is not only the protection of interests, but also the balance of the interests on the basis of the hierarchy’s fundamental interests. Laws realize the purpose by the foundation of rights and obligations, and the application of the interest-balance methods in each respect, including legislation and justice. The theory of balance of interests lays the theoretical foundation for the following study.Chapter 2 definitely raises the basic problems of the balance of interests in the international domain name disputes resolution mechanisms. The basic aim of the balance of interests in the international domain name disputes resolution mechanisms should be the healthy development of the Internet by the resolution of the disputes. The related types of interests include national interest, public interest and individual interest. The types of the balance of interests mainly include the balance between domain name right and interest holders’interests and traditional right holders’interests, and the balance between the related nations’interests. The basic requirements of the balance of interests include the balance of the rights and obligations and the balance of the justice and efficiency.Chapter 3 deeply discusses the balance of interests in the judicial jurisdiction of the international domain name disputes. The independent jurisdiction theories, including Internet autonomous theory, relative jurisdiction theory and the fourth international space theory, cannot meet the requirements of the balance of interests, so they can’t receive any country’s acceptance. Every country settles the jurisdiction problem based on the development of traditional jurisdictional theories and bases. The US minimum contact jurisdictional theory can balance all kinds of interest relationships and should be approved. Our country has formed the location of equipment jurisdictional pattern based on the traditional jurisdictional basis locus delicti. The location of the defendant’s infringing equipment should be applied as the main jurisdictional basis. The location of the computer on which the plaintiff finds the infringing information can be applied as the auxiliary jurisdictional basis when it is hard to find the place where the defendant’s infringing act is committed. Moreover, on the whole, the plaintiff accommodated to defendant doctrine can meet the requirements of the practice and should be upheld. These jurisdictional bases and doctrine, which conform to our country’s realities, can balance the parties’interests and be benefit to the effective usage of the judicial resources of our courts.Chapter 4 systematically researches the balance of interests in the substantive laws on the international domain name disputes. The international disputes between domain names and trademarks are divided into 3 types, which are disputes caused by cybersquatting, passing off and the conflicts between rights. The thesis analyzes the balance of interests in the US and our country’s substantive rules and their application, and expounds the substantive rules and their application on the disputes between domain names and identifiers other than trademarks.Chapter 5 detailedly expounds the balance of interests in the export award mechanism of the international domain name disputes. The ICANN’s mechanism can meet the requirements of the balance of interests in the respect of procedure and realize the efficiency and justice of the procedure. But in the respect of substance, it lays particular emphasis on the protection of trademarks, and fails to protect the interests of the domain name right and interest holders. This situation is caused by many factors, such as the circumstances of era, the limit of knowledge and the representation of certain interests, etc. In order to improve the protection of the interests of the domain name right and interest holders, the rules on the reverse domain name hijacking should be perfected. The type of the suits that the complainants are the domain name right and interest holders can be added when the time is ripe. Our country’s export award mechanism is quite similar to the ICANN’s and also fails to protect the interests of the domain name right and interest holders. So the establishment of mechanism should be strengthened to realize the real balance of the parties’interests.The epilogue includes the whole thesis and poses the key argument that the theory of balance of interests should be traded as the important theoretical basis of the establishment of the mechanism and the practice of the settlement of the international domain name disputes. Generally, the existing dispute settlement mechanisms have shown the notion of the balance of interests well in the respect of procedure, but in the respect of substance, they obviously lay particular emphasis on the protection of the interests of traditional right holders and fail to keep the balance of the parties’ interests. So in the long-term, the mechanisms should be perfected in the respect of substance under the direction of the theory of balance of interests.