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Provisional Rules on Resolution of Disputes in Relation to Chinese Domain Names

Provisional Rules onResolution ofDisputes in Relation toChinese Domain Names

(Promulgated by China National Network

Information Center on November 2,2000)

Article 1.These rules have been enactedin accordance with relevant laws, administrative regulations and policiesof Chinaand with reference tothe corresponding rules and practice of theinternationalcommunityin resolving domain name disputes, to make provisions for resolving disputes that may arise from the registration and use of the Chinese domain names.

Article 2.These rules shall beapplicable tothosedisputes between Chinese domain names and trademarks protectedunderChinese law, subject to the following conditions.

1) The complained domain names are limited to thosereferred toby applicants, administrated and maintained by China Internet Network Information Center(hereinafter referred to as CNNIC).

2)Unless the subject marks seeking for protection have been determined by the authority concerned as well-known trademarks, the Dispute Resolution Institute shall not take cognizance of thedisputes in relation to domain names, which were registered before the enforcement ofthese rules until the expiration of two years counting from the date these rules enter into forceandwhich is registered after the enforcement of these rules until expiration of 2 years counting from the date of registration.

3) Theserulesshall beimplementedby the Domain NameDisputeResolution Instituteunder approval and authorization ofCNNIC andhave binding forceonly to thedisputingparties of disputes andthedomain name registration serviceauthority.

4) The Chinese Domain NameDisputeResolution Instituteshallonlytake cognizance of those disputes betweentrademark owners actingas complainantsanddomain nameowners acting asdefendants.Any domain nameowner disputingthe use ofatrademarkmayseekresolution inother ways.

Article 3.The Chinese Domain NameDisputeResolution Institute (hereinafter referred to as Dispute Resolution Institute) is a non-governmental institute based onapprovaland authorization of CNNIC andisresponsible fortheresolutionofChinese domain name disputes in accordance with the provisions of these rules. The Dispute Resolution Institute shall handle domain name disputes independently, fairly and quickly andshall strictly abide byrelevant provisionsof these Rules. To ensure the effective enforcement ofthe provisions oftheserules,the Dispute Resolution Institute shall formulate detailed procedure rules, which shall enter into force after approval and promulgation byCNNIC.

Article 4.The Dispute Resolution Institute shallmaintaina panelof expertsto handle disputes.The expertsavailable for choicebythe interested parties shall be specialknowledgein the fields of network, intellectual property and law, have a full sense of profession ethics and are competent in making independent and fairadjudicationin domain name disputes. Thepanel of expertshall beselected and appointedand widely publicized on-line by the Dispute Resolution Institute.

Article 5.Theadjudicationof the Dispute Resolution Institute may onlyinvolvethe change ofthe status quo with regard to thedomain names, exclusive of any other remedies or means of relief,andshall unconditionally observe the legally effective adjudications or awards made by competentjudicial or arbitral organs.

Article 6.Any trademark ownerwhose trademark rights are infringed by aregistered domain namemayfile a complaint with the Dispute Resolution Institute,requesting foradjudicationaccording tothese Rules in order toprotect their rights.

Article 7.The prerequisites for supportinga complaint against aregistereddomain name are as follows:

1)Acomplainant hastrademarkrightsconferred by registration according to the law;

2)Acomplained domain name is identicalwithor confusingly similar toa registeredtrademark;

3)Adomain nameownerhas notrademarkrightsunder adomain name orunder letters and symbols combined with adomain name, norhashe/sheotherlegitimate rights or interests;

4)Adomain name was registered andhas beenused in bad faith;

5) The business ofacomplainant has been or willmostprobably be disrupted by the registration and use ofadomain name.

The complainant shall provideeffectiveevidenceprove that all the aforesaid prerequisites are fulfilled.

Where atrademark asking for protectionhas been determinedby relevantauthority as well-known trademarks,no evidence is required for the 5th prerequisite set out in the preceding paragraph.

Article 8.The evidence toprove that a domain name has been no bone fide registration and use include, but not limited to, the followingcircumstances:

1)Adomain nameownerhasever offered for salehis/herdomain nameina sum that unreasonably exceedsthe expensespaidforthedomain name registrationfor a purpose ofmaking profit;

2)The registration of adomain nameis notfor use but for preventing trademark ownersfromregisteringtheir trademarks or part of their trademarks as domain names;

3)Adomain nameisregistered in order to attract and mislead, for commercial gain, internet users tovisita web site under the domain name or other web sites accessible through it by creating a likelihood of confusion betweenthe disputeddomain names andthetrademarksto which the complainants enjoy legal rights.

Article 9.In case evidence provided by a domain name owner verifies one of the following circumstances, the registration and use of a domain name in bad faith shall not be taken into account:

1) A domain name owner or a person having close relation with him/her has legitimate rights or interests in the mark, which forms the domain name.

2) Before receipt of the notification of dispute, a domain name owner has honestly usedthe disputeddomain name or in the course ofprovidinggoods or services under a mark identical to thedisputeddomain name ingood faith, and this mark has thereby acquired a fair degree ofreputation.

3) Complaints filed by trademark owners constitute "reverse domain name hijacking".

Article 10.A trademark owner, who takes advantage of the dispute-resolution procedure in bad faith intent to hijack a domain name possessed by its legitimate owner, constitutes " reverse domain name hijacking". It includes, but not limited to, the following circumstances:

1) A domain name in dispute has been registered and being used with no bad faith and has caused no negative influence to any other registered trademark, or if any, such influence is normal business competition.

2) Before the registration of a complained domain name, the complainant has registeredothercompletely different domain names and fails to provide evidencetothe Dispute Resolution Institute, which is sufficientto justify proper reasons why the domain name in dispute was not registered at that time;

3) When the domain name in dispute was registered, the trademark asking for protection had not been registered in China, nor had it been determined by the competent authority as a well-known trademark.

Article 11.In the Rules, "use of domain name" means thatthe registered domain name has been put into operation as outside codes of websites, leading network users to a particular website through the network system analysis. It shall not be interpreted as"use of domain name"under these rules if a domain name is used in the forms of identity sign, product sign, website and web page sign or other non-network outside code.

Article 12.Upon receipt of a complaint, the Dispute Resolution Institute shall within prescribed time form a panel of experts to hear the dispute in accordance with the prescribed procedure.

Article 13.In case a complainant files multiple disputes against several domain names owned by one and the same domain name owner, both the complainant and the domain name owner are entitled to request the Dispute Resolution Institute to combine several domain name disputes into one case and to be heard by one and the same panel of experts.

Article 14.Before adjudication is made by the panel of experts,either interested party may make a request to the Dispute Resolution Institutefor thewithdrawalof any expert if the interested party believes that the expert has personal interest with the other party and would probably cause unfair adjudication of the dispute.

Article 15.In the course of dispute resolution, domain name registration service providing institutes may not take part in the resolution procedure in anycapacityor by any means¬except providinginformation ontheregistration and use of adomain name upon the request of the Dispute Resolution Institute.

Article 16.Based on the premise that acomplaint has been held established, the resolution results by the Dispute Resolution Institute shall be confined to:

Cancellation oftheregistered domain name;

Transfer ofthedomain name tothecomplainant;

Article 17.Either interested party in the dispute mayinstitutelegal proceedingsfor the same dispute before the judicialorganor arbitralbodybased uponan arbitration agreement concluded by the parties,their agreementbeforetheraise ofacomplaintunder these rulesor in the course of resolution procedure or after themaking ofadjudication by the panelof experts. If the Dispute Resolution Institute decides that the domain name shall be cancelled or transferred to the complainant, the domain name registrationserviceinstitute shallgrant a stay of30 working daysbefore execution of the adjudication.During the period of stay, if the interested parties provide effective evidence to prove that thecompetent judicial or arbitrative department has acceptedto handle the dispute concernedthe domain name registrationserviceinstitute shall not enforce the adjudication made by the Dispute Resolution Institute and decide the next action in accordance with the following circumstances:

The adjudication made by the Dispute Resolution Institute shall be enforced in caseone ofthe interested parties, who institutesthelegal proceedingsor submits for arbitration,withdrawshis/her request, or his/her request forthelegal and arbitrationproceedingsare refused.

Iftheadjudicationmade by the judicialorgan oraward made by thearbitrationbodyhas become effective, the adjudication or the award shall be enforced.

In case the interested parties concludea settlement agreement through conciliation conducted bythe judicialorganor arbitral body handling the disputeor an amicable settlement has been reached by the parties themselves, the agreement shall be enforced.

Article 18.The Dispute Resolution Institute shall establishaspecial website to receive domain name disputes on-line and publicize all relevant information in connectionwith thedisputes. But upon request of the interested parties, the Dispute Resolution Institutemay not publicize anyinformation,if the publication thereof is believed to causepossible damages to the interested parties.

Article 19.TheCNNICis entitled tomake any amendmentsto these rulesin accordance with the developmentof thenetwork and domain name system and changes of relevant lawsadministrative regulations and policies in China. The amended Rules shall be promulgated on-line andshall enter into force after30 daysof promulgation thereof. The newRulesshall not be applicable tothosedomain name disputesthat have beensubmitted to the Dispute Resolution Institute before the amendments of these Rules.

The amendmentsshall be automatically incorporated into the all-existent domain name registration agreement. Domain nameowners who do not wish to be bound by the Dispute Resolution or its amendmentsshall notifythe domain name registration institute timely. Upon receipt of the notice, the domain name registrationserviceinstitute shall continue its service for 30 days and cancel it afterwards.

With regard totheassignment of domain names, the assignee shall unconditionally comply with all-existent agreements that have been concluded between the assignors and the domain name registrationserviceinstitute.

Article 20.TheCNNICshall beresponsible for interpretation of these

Rules.

Article 21.These rulesshallenter into force30 days after the

promulgation thereof.

(These Rules are drafted by CCPIT Patent & Trademark Law Office and are only for reference, with no legal effect.)

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