A Study On Malicious Identification Standards In Cybersquatting

In the Internet environment,a domain name is an important commercial identity and intangible property of a market entity.It is legally a commercial property rights with commercial identity.The cybersquatting behavior is almost a new type of infringement or unfair competition behavior after the domain name is generated.There are both economic and institutional reasons behind it.It is urgent for law-makers to regulate the domain name holders and trademarks holders.The final goal is to balance the interest of domain name holders,trademark holders and consumers.The problem of malicious identification in the cybersquatting dispute is a difficult problem in theory and practice,and has caused controversy and differences in both legislation and judiciary.The subjective reason for this kind of disagreement and controversy is that "malicious" is deeply hidden in the minds of the actors,and it is usually not easy to find out for others;the objective reason is that the legal research in China is not deep enough to understand "malicious",and the connotation and extension of "malicious" has been no conclusions yet."Malicious" is the core key concept in the cybersquatting dispute,and is the core element to define whether the cybersquatting behavior is established.The maliciousness in the cybersquatting dispute has the meanings of "knowing the crime" and "unfair purpose",and is different from "intentional" and "goodwill".From the systematic investigation and normative investigation of legislation,it can be concluded that it is necessary for malicious elements to continue to exist.And given the uncertainty of domain name rights,it needs to be regulated by the same uncertain malicious concept to ensure the balance of damage filling and freedom of action.After solving the necessity of "malicious" existence,the next problem that needs to be solved is how to make the malicious identification standard more clear and specific and more operable.This requires a combing and comparative analysis of existing systems and related systems in other countries or regions.By combing the development history and current situation of China’s current system,we can find that the current legislation is scattered and uncoordinated,the concept is unknown,and it is attached to the trademark law.By consulting China’s previous years of domain name cybersquatting disputes,we can find that the legislative issues have affected the judicial adjudication,and there are problems such as the objective results as the presumption,the different standards of the referee and the excessive tendency to protect the prior commercial identity holders.On the other hand,the mature experience and practices of other countries and regions have provided new ideas and inspirations for the reform of malicious identification standards in China.China can learn from and learn from the object of protection,the type of behavior and the legislative model.Finally,the purpose of this paper is to give suggestions for improvement from both legislative and judicial aspects.At the macro-legislative level,the existing legislative resources should be integrated with the Judicial Interpretation of Domain Name Disputes to achieve coordination between the two resolution mechanisms for domain name disputes.It is also important to formulate case compilation and trial guidelines to summarize the trial experience and refine the identification.standard.At the micro-legislative level,the legislative model of “enumeration + exclusion” should be adopted to revise the current norms,increase the types of behaviors that can identify the perpetrators as malicious,and increase the exclusion of malicious clauses.At the judicial level,we can try to summarize the general trial ideas of malicious identification based on the principle of “unification of subjective and objective”,and summarize certain factors as factors to consider whether the actors are malicious.