June 2008

Domain Name Registration in China

Holland & Knight Newsletter
Hongjun Zhang Ph.D.

Has your company ever received unsolicited email from a company in China that claims to be the domain name registration center in China? If so, were you advised that some equally obscure Chinese company is about to register your company’s name or trade name as a domain name in China? Typically, the sender offers to provide assistance in preventing such registration and to secure rights to the domain name for your company in China. U.S. companies that receive such email messages are oftentimes perplexed by these messages. Is the notice a common Internet hoax or a scam? Is the recipient really in danger of losing rights to a potentially valuable intangible asset – its domain name in China?
This article provides general background and guidance regarding domain name registration and dispute resolution procedures in China that might be useful in assisting U.S. companies in making an informed and appropriate response to these types of messages.

Domain Name Registration
The sole authority responsible for the registration of CN domain names and Chinese-character domain names in China is the China Internet Network Information Center (CNNIC), an organization under the supervision of the Ministry of Information Industry (MII). In order for a person to have rights to a domain name in China he or she must have registered their domain name with CNNIC. CNNIC maintains a search engine on its Web site (http://www1.cnnic.cn/) through which the availability or status of a domain name in China can be checked. Thus, an obvious first step in dealing with the type of domain name registration emails described above is to check the status or availability of the domain name on CNNIC’s Web site.
Assuming that the domain name is still available and not subject to an existing registration, a person may apply to register such domain name with CNNIC. The Implementing Rules of CNNIC of Domain Name Registration (the “implementing rules”) require that an application for the registration of a domain name may only be submitted through a certified domain name registration company. In accordance with the Measures of CNNIC for the Certification of Domain Name Registration Service Companies, a registration company must be certified by CNNIC and registered with MII. CNNIC maintains a list of certified registration companies on its Web site (http://www.cnnic.cn/en/index/0K/05/01/02/index.htm). Thus, if a domain name is still available, an applicant will need to select a certified registration company from CNNIC’s approved list, enter into a service agreement with the registration company and complete a domain name registration application form for filing with CNNIC.
Under the implementing rules, the following information must be included in the application:

    • the domain name applied for
    • the host names and IP addresses of the primary and secondary DNS servers
    • the applicant’s name; the applicant’s representative; the industry category of the applicant; the applicant’s mailing address, postal code, email address, telephone number and fax number as well as authentication information
    • contact information of the personnel in charge of management, technology and accounting for the domain name as well as the person entrusted to apply for registration of the domain name

While the registration with CNNIC itself is free, the registration company will charge an annual maintenance fee for the domain name. The annual fee for a CN domain name varies from one registration company to another but normally falls within the range of 100 RMB to 200 RMB. Some registration companies charge introductory rates as low as 1 RMB for the first year’s registration fee. Fees for registration of a Chinese-character domain name would typically be higher than that of CN domain name registrations.
The holder of a registered domain name may apply to the registration company to transfer the domain name to a third party or cancel its registration. In the event that a holder fails to pay the annual registration fee, the registration company will suspend its services and cancel the registration of the domain name 15 days after the service suspension.

Domain Name Dispute Resolution Procedures
A person who believes that a registered domain name contravenes its lawful interests may file a complaint with a dispute resolution institution accredited by CNNIC under the Measures of CNNIC for the Resolution of Domain Disputes (the “dispute resolution measures”). To date, CNNIC has accredited two arbitration bodies for the resolution of domain name disputes: the Domain Name Dispute Resolution Center of the China International Economic and Trade Arbitration Commission (CIETAC) and the Hong Kong International Arbitration Center (HKIAC). A complaint may not be brought under the Dispute Resolution Measures if the disputed domain name has been registered for over two years.
The dispute resolution institution will order the registration company to transfer registration of the domain name to the complainant if any of the following conditions is met:

    • the disputed domain name is identical with or confusingly similar to the complainant’s name or mark in which the complainant has lawful rights or interests
    • the disputed domain name holder has no right or legitimate interest in respect of the domain name or major part of the domain name
    • the disputed domain name holder has registered or has been using the domain name in bad faith

The dispute resolution measures provide that bad faith will be established if any of the following circumstances exist:

      • the purpose for registering or acquiring the domain name is to sell, rent or otherwise transfer the domain name registration to the complainant who is the lawful owner of the underlying name or mark or to a competitor of the complainant, and to obtain unjustified benefits
      • the disputed domain name holder, on many occasions, registers domain names in order to prevent owners of the names or marks from reflecting the names or the marks in corresponding domain names
      • the disputed domain name holder has registered or acquired the domain name for the purpose of damaging the complainant’s reputation, disrupting the complainant’s normal business or creating confusion with the complainant’s name or mark so as to mislead the public
      • other circumstances which may prove the bad faith

The dispute resolution process provided under the dispute resolution measures is not an exclusive remedy. A party may also bring an action before a PRC court in Beijing. One possible advantage of this course of action is that a claim concerning a disputed domain name would be subject to a different “statute of limitations” period in a judicial proceeding from that provided in the dispute resolution measures. As noted above, a claimant must institute dispute resolution procedures within two years of the registration of the domain name. In contrast, while the statute of limitations for a claim relating to a domain name dispute is also two years for a court proceeding, the time does not start to run until the claimant knew or should have known of the claim.

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