Circular No. 10/2008/TT-BTTTT dated December 24, 2008 of the Ministry of Information and Communication providing for the settlement of disputes over Vietnam's country code domain name ".vn"

CIRCULAR

PROVIDING FOR THE SETTLEMENT OF DISPUTES OVER VIETNAM'S COUNTRY CODE DOMAIN NAME ".VN"

Pursuant to the June 29, 2006 Law on Information Technology;

Pursuant to the Government's Decree No. 187/2007/ND-CP of December 25, 2007, defining the functions, tasks, powers and organizational structure of the Ministry of Information and Communication;

Pursuant to the Government's Decree No. 97/ 2008/ND-CP of August 28, 2008, on the management, provision and use of Internet services and online information on the Internet;

The Ministry of Information and Communication provides for the settlement of disputes over the Vietnam's country code domain name ".vn" as follows:

I. GENERAL PROVISIONS

1. Scope of regulation

This Circular provides for the settlement of disputes over domain names arising in the process of using domain names of different levels lower than Vietnam's country code domain name ".vn" (below referred to as domain names); grounds for settlement of disputes over domain names; forms of settlement of disputes over domain names, and disposal of disputed domain names.

2. Subject of application

This Circular applies to plaintiffs and defendants involved in the settlement of disputes over domain names arising in the use process.

3. In this Circular, the terms below are construed as follows:

3.1. Domain name means a name used to identify an Internet address.

3.2. Plaintiff is an agency, organization or individual that initiates a lawsuit over a disputed domain name when deeming that his/her/its lawful rights and interests are infringed upon.

3.3. Defendant is an agency, organization or individual that is using a domain name and is sued by a plaintiff for the disputed domain name.

3.4. "VNNIC" means the Vietnam National Internet Center, the Information and Communication Ministry's agency managing Vietnam's country code domain name ".vn."

3.5. Domain name ".vn" registry is an organization which registers Vietnam's country code domain name ".vn."

3.6. Disputing parties include the plaintiff and the defendant.

3.7. Dispute over a domain name means a dispute arising in civil relations or commercial activities related to lawful rights and interests of agencies, organizations and individuals regarding the use of domain names.

3.8. Use of a domain name means the association of this domain name with an Internet protocol address (IP address) in an operating server for online applications or for the protection of a trade name, mark, service mark or organization name against appropriation.

II. GROUNDS FOR SETTLEMENT OF DISPUTES OVER DOMAIN NAMES

1. Conditions on initiation of a lawsuit against a dispute over a domain name

Apart from the conditions on initiation of lawsuits and requirements on the contents of lawsuit petitions prescribed by law, a petition for a lawsuit over a disputed domain name must satisfy the following three conditions:

1.1. The disputed domain name is identical or confusingly similar to the name of the plaintiff; identical or confusingly similar to the trademark or service mark to which the plaintiff has lawful rights or interests.

1.2. The defendant has no lawful rights or interests related to this domain name.

1.3. The domain name is used by the defendant with a malicious intent against the plaintiff.

2. Acts of using domain names with a malicious intent

The use of a domain name is considered malicious in the following cases:

2.1. Leasing or transferring a domain name to the plaintiff being the proprietor of a trade name, trademark or service mark identical or confusingly similar to this domain name; leasing or transferring the domain name to the plaintiff's competitors for self interests or illicit profits; or

2.2. Appropriating, or preventing the proprietor of a trade name, trademark or service mark from registering, a domain name corresponding to this trade name, trademark or service mark; or

2.3. Defaming the plaintiff or hindering the plaintiff's business operation or causing public confusion about or distrust in the plaintiff's trade name, trademark or service mark; or

2.4. Other cases in which it is possible to prove that the domain name is used with a malicious intent.

3. Proofs of lawful rights and interests related to the domain name

The plaintiff is considered as having lawful rights and interests related to the domain name if he/she/it satisfies one of the following conditions:

3.1. The plaintiff has used or has proof evidencing that he/she/it is going to use this domain name or a mark corresponding to this domain name concerning the actual supply of products and goods or the provision of services before the dispute arises; or

3.2. The plaintiff is known to the public for this domain name though he/she/it does not have rights to the trade mark or service mark; or

3.3. The plaintiff is lawfully using this domain name in non-commercial activities, legitimately using this domain name for non-commercial purposes or this domain name causes public misunderstanding or confusion, affecting the plaintiff's trade name, trademark or service mark.

3.4. The plaintiff has another proof evidencing the lawfulness.

III. FORMS OF SETTLEMENT OF DISPUTES OVER DOMAIN NAMES

1. Forms of settlement of disputes over domain names

A dispute over a domain name shall, depending on the option of the disputing parties, be settled in one of the following forms:

1.1. Through negotiations or conciliation.

1.2. Through arbitration.

1.3. Initiation of a lawsuit at court.

2. Settlement of disputes over domain names through negotiation or conciliation

2.1. The disputing parties may conduct the conciliation before or during the procedural process. The procedures for conciliation before or during the procedural process comply with legal provisions.

2.2. In case the disputing parties can reach agreement on the settlement of their dispute, they shall make a written record on successful conciliation in accordance with law and send it to the relevant domain name ".vn" registry or the VNNIC for serving as a basis for the disposal of the disputed domain name.

3. Settlement of disputes over domain names through arbitration

Disputing parties may resort to arbitration for settlement of their dispute over a domain name arising in commercial activities. Procedures for settlement of disputes over domain names arising in commercial activities at an arbitration center comply with legal provisions.

4. Settlement of disputes over domain names at courts

Disputing parties may request a competent people's court to settle their dispute over a domain name arising in civil relations and commercial activities. Procedures for settlement of disputes over domain names arising in civil relations or commercial activities at people's courts comply with legal provisions.

5. Settlement of several disputes over domain names

The plaintiff and the defendant may request the settlement of one or several disputed domain names. The concurrent settlement of requests of the plaintiff or the defendant must comply with legal provisions.

IV. DISPOSAL OF DISPUTED DOMAIN NAMES

1. Responsibilities of the domain name ".vn" registries and the VNNIC

In the process of dispute settlement, the domain name ".vn" registry or the VNNIC shall supply information relating to the registration and use of the disputed domain name at the request of the court or arbitration organization or perform other tasks in accordance with law.

2. Disposal of disputed domain names

2.1. The domain name ".vn" registry and the VNNIC shall base itself on the successful conciliation record of the disputing parties: effective arbitral award; or effective court judgment or ruling to:

a/ Revoke the domain name and give priority to the plaintiff in registering the use of this domain name or maintain the current status of the domain name;

b/ Implement other decisions related to the revocation, suspension or termed retention of the disputed domain name.

2.2. In the course of dispute settlement, the disputed domain name must be kept intact and may not be returned, revoked or transferred to another domain name ".vn" registry or another organization or individual.

2.3. When the successful conciliation record; effective arbitral award; or effective court judgment or ruling clearly states that the plaintiff is allowed to register the use of the revoked disputed domain name, the plaintiff will be given priority in making registration within 10 consecutive days after the effective date of such document. Past this time limit, the domain name will be released for free registration.

V. ORGANIZATION OF IMPLEMENTATION

1. This Circular takes effect 15 days after its publication in "CONG BAO."

2. Any problems arising in the course of implementation should be promptly reported to the Ministry of Information and Communication for consideration, supplementation and amendment.