Does What Works for '.Com' Also Work for '.Cn'?: Comparative Study of Anti-Cybersquatting Legal Systems in the United States and China
John Marshall Journal of Computer and Information Law, Vol. 20, p. 541, December 2002
54 Pages Posted: 24 Jun 2011 Last revised: 19 Aug 2014
Date Written: December 1, 2002
Since the Beijing First Intermediate People’s Court received the first cybersquatting case in China, Fulande v. Mitian Jiaye, in April 1999, Chinese courts had received more than 40 cybersquatting cases by July 2001. Internationally well-known trademarks, such as “Tide,” “Ikea,” and “Safeguard,” have been involved in cybersquatting claims. Although Chinese courts promptly reacted to this newly emerging question, absence of pertinent legal rules resulted in uncertainty and inconsistency in decisions from different courts. The Trademark Law and Anti-Unfair Competition Law of China, were quoted by most courts as legal basis, however they failed to provide sufficient remedies against cybersquatting.
In order to mend the flow in current statutes and to accommodate the need for regulating cybersquatting, on July 24, 2001, the Supreme People’s Court issued a judicial interpretation titled Interpretation of Several Issues on Application of Laws to Civil Cases Involving Computer Network Domain Names (“The Interpretations”), as a guideline for all Chinese courts in deciding cybersquatting cases. The Interpretations is the consolidation of all prior judicial experience and is deemed as the latest achievement of China’s fight against cybersquatting.
As the cradle of Global Information Infrastructure, the United States was the first country faced with the challenge of cybersquatting and has accumulated the most sophisticated experience in dealing with this problem. Therefore, China courts have frequently made reference to their U.S. counterparts while handling cybersquatting cases. This also explains the fact that The Interpretations largely follow the U.S. model, Anti-Cybersquatting Consumer Protection Act (“ACPA”).
By a closer observation, we may however, discover that significant differences still exist between these two countries in their legislative and judicial practices as pertaining to cybersquatting. Some such differences may result from China’s civil law tradition as opposed to America’s common law tradition. The other differences result from China’s limited experience and insufficient understanding in the legal and technological complexity of the cybersquatting problems.
This article, by the means of comparative study of the anti-cybersquatting legal systems in the United States and China, aims to find out whether, and to what extent, China can transplant the United State’s experience to construct her own effective legal mechanisms against cybersquatters.
Keywords: Trademark, domain dame dispute, cybersquatting
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