The Study On Affirmation Of Bad Faith In The Domain Name

Affirmation of bad faith in the domain name unfair competition is a hard judicial task. This because of two reasons. One reason is that bad faith is one kind of mind which full of subjectivity. The other reason is that the study of bad faith is not adequate.The intension and extension about this conception are unclear. So to complete this judicial task needs two aspects endeavor. First clarify the intension and extension of bad faith, and then analyse all the factors which should be take into consideration under the guide of a clear theory frame.We must find questions out from judicial cases if we want to provide assistance for it. Try to find the disputes and consensus between different courts Through the analyse of210judicial cases. There are the consensus have been found:First, extend the special protect of famous trade mark into the period of domain name. Second, the bad faith will be affirmed if the domain name keeper asked trade mark owner for trading. Staying disputes are as follows:First, which is the reasonable basis for court to affirm the bad faith, objective or subjective. Second, which is the better path for courts to affirm the bad faith according to the domain name keeper’s subjective attitude.The guidance of theory should be pay enough attention, so clarify the intension and extension of the conception of bad faith by researching the literature is necessary. The intension of the conception of bad faith conclude two sides. One side means a kind of knowledge, and the other side means intention.On the specific period of affirmation of the domain name unfair competition, the first problem should be solved is that in which side should we define the bad faith. According to the research on the relative legal norms, the analysing on the relationship between the bad faith and the principle of faithfulness, and clearing the domain name-related theory to get the preliminary conclusion that the intension of bad faith in the aspect of domain name unfair competition means:one kind of intention with ill purpose.Offering assistant for judicial practise is not only needs clear intension, but also needs to analyse all the factors which could affects the bad faith affirming should be taken into account. The considerable factors are as follows:The will factor should be the wishing or indulgence for some results. The cognition factor is the knowledge for some results. Because the actor’s knowledge is not easy to be observed by judges, so abstract a reasonable person is a good way to affirm it. The result factor conclude in two ways. One is determined by the <Interpretation of the supreme people’s court on application of laws in the trial of civil disputes over domain names of computer network>, include mis-identification and obstruction, the other is concluded from faithfulness and judicial cases, include trade mark dilution, trade mark dispraise, and domain name hoarding. Because faithfulness principle is full of uncertainty and always bears a thick colour of morality, judges should carefully use the result which come from the faithfulness principle when the affirm the bad faith.After all the study above,come out a frame about how to affirm the bad faith in the domain name disputes as a conclusion.