Study On Legal Issues Concerning The Conflicts Of The Domain Name And Trade Mark Right

With the rapid development and commercialization of the Internet in China, some legal problems such as domain name disputes and infringement based on the Internet or e-business have become one of the most-concerned and complex issues in the country.The article starts with the concept of domain name and its legal nature. Domain name is an address system to identify and locate network-based computers. It could be a name of a server or a network system on the Internet. Its legal nature comes through a comparison with traditional trademarks and intellectual property. Representing an exclusive right, domain name shall be protected according to the standards for intellectual property protection though it fails to meet all the characteristics of intellectual property. The article discusses some possible causes for the conflicts between domain name right and trademark right with examples of major conflict types. Two practical approaches are offered then to settle the conflicts: administrative and judicial. The author gives some solutions to domain name registration disputes, domain name stealing disputes, disputes arising from coincidence of domain name and trademark, disputes over pure right conflicts, and disputes over right conflicts between a priorly registered domain name and a later registered trademark. The author also introduces in a comparison some measures adopted by USA, Japan and WIPO for dispute handling over the conflicts, and elaborates the dispute handling measures in juridical practice in China. The author provides several suggestions in conclusion. First, set up a benchmark for dispute handling; second, work out specific measures, such as 1. make an Internet Law; 2. provide special protection for famous domain names; 3. give a reasonable restriction on the ownership of trademark and prohibit domain name reverse hijacking; 4. set up stricter domain name registration and approval standards; 5. promote domain name security awareness and carry out domain name security registration; 6. speed up the law making process for complete domain names; 7. make clear the specific content of the authority's annual examination; 8. change the life-long registration system to a term system or annual maintenance fee system.It is certainly a very complex job to effectively settle the conflicts between domain name right and trademark right. It not only requires a smooth cooperation of many legislative and judicial departments, but also involves a variety of legal issues from the Thirteen Laws to private laws. The article only touches on several important problems in a hope to find a way to handle the disputes in juridical practice.