On The Conflict Of Rights Between Domain Name And Trademark And The Resolution

The society will enter into another new era with the production and development of Internet. We are in an alternative period transiting from the old to the new at present. The new things and old things conflict with each other and merge together, which promotes the advance of the world. Domain names and trademarks are a miniature of the period. The development of history is continuous. The past is the foundation of the present and the present cannot hinder the development of the future at the same time. The development and change of the things all have their laws, and the laws must be observed. It is very important to strengthen the protection of the traditional intellectual property rights on Internet, but the development of Internet cannot be hindered from developing for the reason. It is the same to solve the conflicts between domain names and trademarks. The existence value of the domain name cannot be denied just because the trademarks have played an important role in the traditional commercial activities; and meanwhile the trademark rights cannot be infringed for the swift and violent development and the technological advantages of domain names. As a result, the style of solving the conflicts between domain name and trademarks should be constructed to coordinate the interests represented by domain names and trademarks on the whole and macroscopic angles, taking fairness and honesty as principles and promoting economic development as foundation. This thesis is made up of three parts. The first part discusses the reason of the conflict between domain names and trademarks and the main types of the conflicts between domain name and trademark mainly. Firstly, this thesis introduces the concepts and functions of the domain name and trademark briefly. On this basis, the reasons of the conflicts are discussed from the similarities and differences between domain name and trademark then. A lot of enterprises register their trademark as domain name in order to enhance the impression of the customers, because the domain name and trademark both have the characteristics of identification and value, and the form of the two has similarity. Domain name and trademark have differences too. Domain name has exclusiveness because of the network technology. The registered domain name is unique under the same top level domain name; while the trademark has common characteristic because of the trademark classified system and there can be same trademarks existing on different commodities and services. The obtaining principles are different between domain name and trademark. The obtaining principle of domain name is "first come, first serve"and the essential examination isn't necessary. The obtaining principle of trademark is different in different countries. The applied fields are different between domain name and trademark. Domain name emerged with the appearance of Internet and its applied scope almost includes every aspect of the society. Trademark is used in the commercial field from its emergence. Therefore, the conflicts of the two mainly occur in the commercial field. The characteristics of identification and value of domain name and trademark lead people to strive to be the first to register the famous trademarks as domain names. The registering process of domain name needn't essential examination, so the people who register domain names are seldom denied. However, not all the owners of trademark can register their own trademark as domain name. Then, the conflicts between domain name and trademark produce unavoidably.Finally, the first part introduces the main types of conflicts between domain name and trademark. In our country, the conflict begins from the second half of 1996 and the main form is to rush to register the famous or well-known trademark as domain name maliciously. This kind of conflict has almost been contained gradually because of the perfection of legislation and the abundant experience to solve the conflicts. The second form of conflict is between the domain name registered legally and the trademark. This conflict can be divided into two kinds; one kind is between one owner of the trademark who has registered the trademark as domain name and the other owners who own the same trademark, another kind produces coincidentally because the registered domain name is the same as the other people's trademark. In the second form of conflict, the people who registered the domain name and the people who registered the trademark both have the legal rights. The third form of conflict is reverse domain name hijacking. The owner of a trademark utilizes Domain Name Dispute Resolution Policy maliciously to deprive the domain name that has its legal basis. The domain name seized is often famous and similar to the other people's trademark that has been registered before. The last form of conflict is to register famous domain name of other people as trademark. Although this kind of conflict isn't obvious, it is predictable that this conflict will increase gradually when Internet plays a more important in daily life. These four kinds of conflicts appear progressively in the order of time, and the characteristics of the conflicts between domain name and trademark come out little by little, exceeding the period that people can only recognize part of them at the beginning of Internet. The second part puts forward three principles to solve the conflictsbetween domain name and trademark, which are giving equal protection to domain name and trademark, prohibiting registering and using maliciously and giving special protection to well-known trademark. Offering the same protection to domain name and trademark indicates that domain name and trademark have equal legal statuses and domain name is the object of intellectual property right too, possessing the characteristics of intellectual property right. The legal status of the trademark is not higher than that of the domain name, and effect of Trademark Law cannot be extended to Internet naturally. It is wrong to protect the rights established formerly and denied the latter rights simply while dealing with the conflicts between domain name and trademark. The rights established in accordance with the law should be protected. The principle of prohibiting registering and using maliciously excludes the situation of "registering and using maliciously". If the actors have the malicious motivation to register or utilize domain name or trademark subjectively, they rights cannot be protected by law. The well-known trademarks should be given special protection. The protection on well-known trademarks is wider than common trademarks, which is stipulated in Pairs Convention for the Protection of Industrial Property , TRIPS and the Trademark Law of various countries. And it is the same on Internet. The well-known trademarks have high popularity and can bring more profit than the common trademarks, so the well-known trademarks are often infringed. Except the traditional infringements, such as passing off and deliberate confusion, the dilution also should be avoided. As a result, the registered domain name may be prohibited to use, if the domain name brings dilution to the well-known trademark, although the actor isn't malicious when heregistered or used the domain name. The third part makes proposes to solve the conflicts between domain name and trademark with reference to the foreign experience. The feature of America is to promulgate and implement Federal Trademark Dilution Act and Anticybersquatting Consumer Protection Act. Federal Trademark Dilution Act establishes the principle of enlarging the protection on well-known trademarks, and Anticybersquatting Consumer Protection Act takes the interests into consideration of both the people who registered domain name and the owner of trademark, trying to find balance between the two. The World Intellectual Property Organization puts forward three aspects involving the solution of the conflict between domain name and trademark, which are avoiding emergence of the conflicts, utilizing arbitration to solve the conflicts and giving special protection to the famous and well-known trademarks. Uniform Domain Name Dispute Resolution Mechanism is the main judiciary means to solve various disputes top level domain name in the world at present and has profound influence to the mode of solving the conflicts between domain name and trademark in other countries. This thesis constructs the ways to solve the conflicts between domain name and trademark in our country from three aspects. First, the registered procedures should be perfected and the well-known trademark search system should be established to prevent the occurrence of the conflicts and to assure the contact information of the owner of a registered domain name is true. Second, Domain Name Dispute Resolution mechanism of China Internet Network Information Center should be utilized sufficiently which is fast, simple and economic and this mechanism is an adaptation of Uniform Domain Name Dispute Resolution Mechanism.