| The birth of the Internet has been nearly half a century.In general,September 2,1969 is considered "Internet Birthday"."Internet Birthday" is to commemorate the "Data Exchange Test" success,the original intention of this test is to achieve the main US scientific research institutions between the interconnection,and ultimately by the United States Advanced Program Research Institute(ARPA)research and development of"Apa"University of California,Los Angeles(UCLA),a prestigious university on the west coast of the United States,was successful.The Communist Party News Network(cpc.people.com.cn)has written:"The emergence of new media in the Internet has revolutionized the mass media,and if Roosevelt was" the president of the radio,"Kennedy was" the president of television "The New York Times has also reported that" if there is no Internet,Obama will not become president of the United States,if there is no Internet,Obama will not even Become a Democratic presidential candidate!"In the United States presidential election in 2016,the Internet also declared its status with practical action,one of the important roles is the domain name."Chuanpu Group to buy the domain name is divided into three categories,one is associated with the Trump name of the negative domain name,such as DonaldTrumpSucks.com;one is Trump for the campaign ahead of the registered domain name,such as Trump2016.com;The rest is the name of the product name in the name of the company,of course,Trump is not only concerned about their own future and reputation,he also registered and acquired with his children and grandchildren name related domain name.In this globalized era,the rapid growth of e-commerce expedites the domain name commercialization.Such development leads to the mutual penetration between the functions of domain names,trademarks and trade names,and also breaks through the original function of domain names as marks for Internet navigation.Not only the value and functions,but also the forms of domain names are changing from generic domain name to wireless domain name and to new gTLD.These changes have brought a new climax of conflicts between domain names and other rights,especially trademarks.The scholars and practitioners are paying more and more attention to domain names.As a new technology,domain name has brought formidable challenges to the traditional protection.How to define the legal nature,who models of protection shall be adopted,how to resolve disputes,etc.are issues pending for urgent solutions.This Article starts from the structure and features of domain names,and stressed on the introduction of the new forms of domain names.The second session analyzes and concludes domain names' legal nature,which will be used as a basis of this Article.The third session discusses the domain name protective measures in relation to the U.S.and international organizations,and analyzes China's current domain name protection and problems.The last session gives suggestions of the solution to the problems on the basis of the preceding theories and analysis.Domain name was different from what it looks like today when it was established in the first place."Domain name" is a word invented in the Internet era.It initially was a technical word,referring to the character address mark of devices and host computers on the Internet.Such character address mark transits/translates Internet Protocol Addresses(such as 66.218.71.80)into names that coincide with people's linguistic habit(such as yahoo.com which responds to 66.218.71.80).China Ministry of industry and information technology explains "domain name" as character marks to identify and locate the structure of computers on the internet,which respond to the Internet Protocol of such computers.The purpose and the value are two codependent and important components of domain names,which together constitute the legitimacy of domain name protection.(1)Purpose of domain name.Domain name works in both technical and identifying ways.The technical way refers to that a domain name represents the absolute address of the holder in the cyber world.The identifying way refers to the identification which a domain name provides for people in on-line social activities.The communication and connotation in the internet world is related to and also different from the traditional society.In the visual cyber world,few people use their real names to communicate with others.Domain names become a kind of important identification.(2)Value of domain name.The significant value of domain name comes from its basic nature.Firstly,domain name is a limited resource.In accordance with the IP address coding rules,theoretically the Internet can accommodate at most 4.2 billion domain names,which seem to be many choices.However,some domain names are of little value because they are too long,too complicated or hard to memorize.Statistics show that over 16 million Top-level Domain names(.com,.net and.org)have been registered.Those domain names with significance have been almost exhausted.Secondly,a domain name is exclusive and sole.The same trademark can be registered in different industries by different companies,whereas one domain name cannot be owned by two companies.For example,"Changcheng"("Great Wall")is used by thousands of companies in China as trademark or trade name.Some of them are even giant companies with assets of over hundreds of millions yuan,such as Great Wall Industry,Great Wall Computer,Great Wall Aluminum,Great Wall Wine.But the domain name "greatwall.com.cn " is solely owned by Great Wall Computer and other companies have to use other domain names.Any research of legal protection of domain name must go with in-depth analysis of the legal features and nature of domain names.The legal features of domain names can be summarized as follows:intangible,signifying,sole,exclusive,time-crucial and reproducible.There are three major opinions globally about the nature of domain names:1.Domain name is a new IP;2.Domain name is the extension of traditional IP in networks;3.Domain name is not an IP(rather a right of name),but it is still a civil right.Even though some scholars believe that domain name is an IP,they have distinctly different ideas.Some point out that it is an IP without analyzing its features;so believe that it is a commercial mark hence there is no need to create a new definition about what right it should be.Domain name disputes happen largely because the similarity to prior traditional IPs such as trademark,company name,trade name and distinct logo.Meanwhile,these marks and domain name are different in many ways.It is the difference leads to the conflict between domain names and other IPs.There are a few major causes of domain name conflict:1.The respective natures of domain name and trademark.2.The pursue of profits.3.Loophole of the current law.4.The limitation of the current distribution of domain name technical system.Legal protection mechanism of domain name is adopted by many countries.It is a popular method in the world to establish a domain name system to solve disputes between domain names.These legal systems have their own features,and China can learn from them to enhance China's domain name protection.1.Legal license mechanism of representative foreign jurisdictions.We can divide foreign jurisdictions into those of the Common Law System(including the U.S.and Australia)and those of the Civil Law System(mainly including Germany,France and Japan).2.Legal license mechanism of different jurisdictions in China.In China,mainland,Hong Kong and Taiwan adopt different legal systems as well as different legal protection of domain names.China mainland can learn from Hong Kong and Taiwan in this respect.3.Legal protection of domain names adopted by international organizations.Legal protection of Domain Name System is one of important Intellectual Property systems.However,at the current stage,there exits several issues at legal protection of Domain Name System in China:firstly,imperfect legislation,which mainly shows as lacking of feasibility at naming and restriction of domain name registration and low-level of laws and regulations for solving domain name disputes;secondly,lacking efficiency of domain administrative management though administrative procedure takes irreplaceable advantage and effect in domain name dispute resolution,such as ambiguous administrative regulation of procedure of domain name dispute resolution and the negative role of CNNIC in resoling domain name dispute;thirdly,judicial proceeding is the last defense of protecting citizens and legal persons,and can maximally guarantee the justice for dealing with case as its rigorous procedure setting.Nonetheless,it is doubtful for judicial efficiency and effect when in face with domain name disputes,such as restriction of recognition and enforcement of verdict at foreign court,restriction of action of domain name rights affirmation,etc.The following steps can achieve the goal:adopting laws to officially recognize the power of CNNIC regulations;upgrading the domain name registration procedure while maintaining the stability of the current domain name system;to distinguish bad-faith domain name preoccupation disputes from normal preoccupation disputes.3.To enhance the law enforcement and jurisdiction.The power of law lies in the enforcement.Administrative measures include:setting up departments and procedures to resolve bad-faith registration disputes in ICANN;establishing domain name administration organizations to comprehensively evaluate the registration,management and disputes,so as to build consistent standards,improve efficiency and clarify responsibilities.Juristic measures include:improving the juristic efficiency and enhancing reliefs. |
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