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Does not Domain Name.VN Dispute Resolution by Arbitration Work in Vietnam?
(Ngày đăng: 2017-03-20)

By Le Quang Vinh, Senior Partner

vinh@bross.vn

UDRP-like Domain Name.VN Dispute Resolution Policy of Vietnam

In Vietnam, for the years of 2000s, domain name disputes started to occur and now trend to be more increasing. However, since no Uniform Domain-Name Dispute-Resolution Policy[1] (UDRP) for domain name .VN is issued by Vietnam’s authority, thus almost disputes are either still pending or are not thoroughly resolved. Method of conciliation among the related parties for domain name dispute resolution is mainly recommended by Vietnam Internet Network Information Center (VNNIC), an affiliation of Ministry of Information and Communications (MoIC) in multiple years.

In 2006, domain name became the one of subject matters regulated by the 2006 Law on Information Technology, thereby, pursuant to Section 76, a domain name .VN dispute may be settled through one of the three routes: 

(a)    Conciliation between complainant and respondent; or

(b)    Through arbitration; or

(c)     Initiating a lawsuit with a competent court.

According to Report on Internet Resource of 2014 released by VNNIC, as of late 2014 there had been 291,103 domain names .VN granted. Such number is ranked no. 1 in Asean region, 7th place in Asia in terms of growth speed, of which individual registrant accounts for 57% and organization registrant makes up 43%. Domain names. VN and COM.VN are the most registered ones with 33,51% and 53,48% respectively. 70% out of 291,103 registered domain names .VN are reportedly running. There is a tiny proportion of 6,76% of domain names .VN registered by foreigners among which US registrants are prevailed. Also in the Report, there have been 217,235 generic top-level domain (gTLD) registered and being used by Vietnamese subjects up to late October 2014 and such amount tends to decline, causing the volume difference between gTLDs and ccTLD become less.

Article 16 Decree 72/2013/ND-CP replacing Decree 97/2008/ND-CP stipulates that the following grounds shall be substantiated by plaintiff in a disputed domain name.VN:   

(a)   Disputed domain name is identical with or confusingly similar to the complainant’s name; identical with or confusingly similar to trademark, service mark to which the complainant has the right and legal interest; and

(b)   Respondent has neither right nor legal interest relating to such disputed domain name; and

(c)   Domain name is used by respondent in a bath faith against complainant.

(d)  Defendant leases or transfers disputed domain name to plaintiff who is the owner of name, trade mark, service mark that are identical or confusingly similar to such disputed domain name; leasing or transferring it to plaintiff’s rivals in return for his own interest or an illicit benefit

(e)   Defendant possess, prevent plaintiff who is the owner of name, trade mark, service mark from registering disputed domain name corresponding with those trademarks for the purpose of unfair competition;

(f)    Defendant uses disputed domain name to harm plaintiff’s reputation, deter plaintiff’s business activities or cause confusion, diminish belief of public to plaintiff’s name, trade mark or service mark for unfair competition purpose.

(g)   Other circumstance provable that the use of disputed domain name by defendant infringes right and legal interest of plaintiff

UDRP-like domain name dispute resolution policy of Vietnam would exist if Circular No. 10/2008/TT-BTTTT (“Circular 10”)[2] guiding the implementation of Decree 97/2008 was in force. According to Circular 10, except for no requirement of “has been registered in bad faith” in third conditions mentioned Paragraph 4(a) UDRP Policy, three conditions below shall be met by plaintiff:

(a)    Disputed domain name is identical with or confusingly similar to the complainant’s name; identical with or confusingly similar to trademark, service mark to which the complainant has the right and legal interest; and

(b)    Respondent has neither right nor legal interest relating to such disputed domain name; and

(c)     Domain name is used by respondent in a bath faith against complainant.

The wording of Article 16 Decree 72/2013/ND-CP that seems to be beyond 3 conditions based on UDRP may cause ones understand that plaintiff must prove all of seven conditions instead of three.

Is Domain Name Dispute Resolution through Arbitration Inoperative?

UDRP is characterized by the mixture between arbitration and administrative proceedings by requiring ICANN’s accredited registrars and their customers (domain name holder or registrant) follow UDRP Policy through the representation by default that UDRP Policy is incorporated by reference into Domain Name Registration Agreement by registrants and any third parties other than registrars. UDRP deserves to be praised because it has successfully arranged an arbitration clause in a default manner before a dispute may occur.

Unfortunately, no term or condition like UDRP are found in Domain Name Registration Agreements provided by 17 Vietnamese accredited registrars allowing to refer to Vietnam International Arbitration Center (VIAC) and its Rules[3] led to the fact that domain name dispute resolution by arbitration in Section 76(b) of the 2006 Law on Information Technology becomes almost useless. Yet, it seems that there has been neither real UDRP nor UDRP-like in existence to fight against the abusive registration and use of an Internet domain name in Vietnam.

 


[1] The Uniform Domain Name Dispute Resolution Policy (the UDRP Policy) sets out the legal framework for the resolution of disputes between a domain name registrant and a third party (i.e., a party other than the registrar) over the abusive registration and use of an Internet domain name in the generic top level domains or gTLDs (e.g., .biz, .com, .info, .mobi, .name, .net, .org), and those country code top level domains or ccTLDs that have adopted the UDRP Policy on a voluntary basis. See http://www.wipo.int/amc/en/domains/guide/#a1    

[2] Circular 10 was repealed by Circular 24/2015/TT-BTTTT of August 18, 2015 taking in effect as from October 10, 2015. However, in Circular 24 it is noted that no grounds or conditions are to be satisfied by plaintiff to resolve a disputed domain name

[3] Model Arbitration Clause is recommended by VIAC: “Any dispute arising out of or in relation with this contract shall be resolved by arbitration at the Vietnam International Arbitration Centre (VIAC) in accordance with its Rules of Arbitration”. See: http://eng.viac.vn/model-clauses-c130.html

 

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