HKIAC Guide to Alternative Domain Name Dispute Resolution (2nd ed.)
As a branch of the Asian Domain Name Dispute Resolution Center (ADNDRC), the Hong Kong International Arbitration Center (HKIAC) is one of the providers of domain name dispute resolution services. HKIAC is accredited, among others, by i) the Internet Corporation for Assigned Names and Numbers (ICANN) to handle domain name disputes under the Uniform Domain Name Dispute Resolution Policy (UDRP), ii) the Hong Kong Internet Registration Corporation Ltd. (HKIRC) to manage disputes relating to Hong Kong domain names (.HK and .香港, the so-called hkDRP procedure) and iii) by the China Internet Network Information Center (CNNIC) to manage those falling under the out-of-court settlement procedure Chinese domain name disputes (.中国, .中國 and .CN, a procedure called cnDRP). Since 2001, HKIAC has administered more than 2,800 procedures.
In 2017, the HKIAC published a guide for the use of parties and third-party decision-makers to, on the one hand, provide them with the information necessary for drafting letters and decisions and, on the other hand, to help them in the conduct of proceedings. The HKIAC has just published the second edition of this guide (HKIAC, Guide to HKIAC Domain Name Dispute Resolution, 2nd Ed., 2022, hereinafter “HKIAC Guide 2022”: hkiac.org).
This second edition includes statistics based on data collected primarily between 2018 and 2021. Complaints most often come from brand owners headquartered in the United States (25%), China (20%) and Hong Kong (13%), while respondents overwhelmingly indicate a mailing address in mainland China (74%) (HKIAC Guide 2022, p. 26). Procedures are often conducted in Chinese (57%) and English (43%) (HKIAC Guide 2022, p. 28).
Focus on the cnDRP
The HKIAC does not have exclusive jurisdiction for out-of-court settlement of disputes relating to Chinese domain names. Indeed, the China Commission for International Economic and Trade Arbitration (CIETAC) has also been competent since the origin of the cnDRP, in 2007. The Arbitration and Mediation Center of the World Intellectual Property Organization (WIPO) was accredited in 2019. With fifteen years of experience in resolving Chinese domain name disputes, HKIAC stands out. The HKIAC reveals that it has administered more than a thousand files since the entry into force of the cnDRP (Guide HKIAC 2022, p. 14), which underlines the expertise of the center.
The guide includes several useful reminders, particularly at the procedural level. Indeed, the HKIAC recalls the specificity of the cnDRP which sets a limitation period: two years initially but increased to three years since June 18, 2019 (HKIAC Guide, para. 38(ii), p. 14) (see also iptwins.com , 2020-12-03). The question of the starting point had been raised in various cases (see, for example, iptwins.com, 2020-12-09 and iptwins.com, 2020-12-21). The selected decisions in the HKIAC Guide confirm that the transfer of the disputed domain name restarts (the HKIAC uses the verb “reset”) the date of registration (HKIAC Guide 2022, para. 90, citing Lester Brands AV v. Chen Qiuheng (HKIAC Case No. DCN-1500641, October 10, 2015) and Airbnb Inc. v. Guo Lanzhi (HKIAC Case No. DCN-1700742, July 3, 2017)). However, the guide’s authors alert parties and panelists to CNNIC’s contrary position:
“More recently, since the statute of limitations was adjusted from two years to three years, CNNIC confirmed to HKIAC that the three-year statute of limitations begins from the date of domain name registration, and transfers do not reset the time limit for filing a complaint CNNIC recommended that HKIAC not accept complaints when the date of registration is time-barred (i.e. more than three years from the date of filing the complaint) (HKIAC Guide 2022, par. 91).
CNNIC’s position lacks any legal logic. First, as the HKIAC Guide points out, Article 9(a) is expressly aimed at the acquisition of the domain name. Maintaining the CNNIC solution would render this provision useless. Second, UDRP case law equates the acquisition of a domain name with a new registration. This is solid and uncontested case law (WIPO case law overview, paragraph 3.9). Finally, the solution chosen by the panelists complies with the principles governing the law of civil liability (iptwins.com, 2020-12-06).
The HKIAC guide also recalls that, unlike the UDRP rules of procedure which favors the language of the domain name registration contract, article 8 of the cnDRP provides that the procedure takes place in Chinese. However, this rule should not be considered as an exception that would result from a comparison between the UDRP and the cnDRP. Indeed, concerning the top-level geographic domains (country-code top-level domains or ccTLDs), the principle remains the official language(s) of the country corresponding to the ccTLD in question.