Archive for china laws

Sports-Related Domain Name Disputes in Asia

Posted in Chinese International Trade, Chinese Legal Issues, Doing Business in China with tags , , , , , , , , , , , on 11/15/2010 by David Griffith

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Courtesy of INTERNET BUSINESS LAW SERVICES

Sports personalities and promoters can turn to the Asian Domain Name Dispute Resolution Centre (ADNDRC) for dispute resolution services regarding domain names that are claimed to infringe registered trademarks. Other remedies available to them include those pursuant to personality rights law in China, or passing off and trademark law in Hong Kong.

The Asian Domain Name Dispute Resolution Centre (ADNDRC) was formed as a joint undertaking by the China International Economic and Trade Arbitration Commission, Hong Kong International Arbitration Centre and the Korean Internet Address Dispute Resolution Committee. It was subsequently approved by the Internet Corporation for Assigned Names and Numbers (ICANN) to provide dispute resolution services in regard to Asian generic top level domain names (gTLD’s), under the Uniform Domain Name Dispute Resolution Policy (UDRP).

The ADNDRC may delete or transfer the domain name under paragraph 4 UDRP if the domain name is confusingly similar to the trademark; the domain name holder had no legitimate interest; and the domain name was registered or used in bad faith.

In Telstra Corporation Limited v. Domain-Broker-Labs, Case No.D2000-1789, the complainants, Australia’s leading information services company, entered into a strategic Pan-Asian Alliance with Pacific Century CyberWorks, a leading Asian communications company. They sued for and obtained transfer of the Asian respondent’s domain name, registered shortly after conclusion of the Alliance, on the grounds that the respondent did not carry on any related business, was not commonly known by any similar name, and did not act in good faith.

The panel in that case held that “given the [claimant’s] reputation and goodwill in the TELSTRA PCCW name and the public announcement which… featured…prominently in South East Asia, it is hard to see how the respondent can claim to have registered the name in good faith.… [given] the lack of any adequate explanation or the denial of bad faith….”

In Advance Magazine Publishers v. Shenzhen Hengtaixin Golf Utilities, CIETAC CND-200300007, respondent registered the domain name golfdigest.com.cn to provide information services concerning golf. The complainant was the owner of the trademark GOLF DIGEST for print publications in China. Article 11 of the Chinese Trademark Law and Article 49 of the Implementing Regulations of the Trademark Law provide that trademarks referring to the quality, quantity, or other features of goods may not be registered, and there is no right to prohibit others from using these terms normally. The panel ruled that the complainant could not register the trademark for information services on golf and was limited to print publications and similar goods; consequently, there was no right to prevent the respondent’s normal use of the descriptive term in its domain name.

In Alibaba (China) Network Tech., Ltd. v. Jichuang Power Group Co., CIETAC CND-2003000024, the China Internet Network Information Centre (‘CNNIC’), China’s official domain names regulator and administrators of .cn TLD, refused the application of Beijing Zhengpu Science Development Company for the Chinese name ‘Alibaba’ on the grounds that the domain was reserved for a well-known Hong-Kong based online business-to-business marketplace, Alibaba.com Corporation. A Beijing Intermediate People’s Court ruled that CNNIC did not have the right to reserve Chinese domain names for well-known companies and ordered them to treat all domain applicants equally.

Are there any other sources of protection for domain names infringing identity rights of sports personalities in China?

Article 99(2) of the General Principles of the Civil Law guarantees legal persons the right to exclusive use of their personal names. Article 120 provides, that if a legal person’s “name, portrait, reputation or honor is infringed upon, he shall have the right to demand that the infringement be stopped, his reputation rehabilitated, the ill effects eliminated and an apology made; he may also demand compensation for losses.”

How have the above legal protections been applied in practice?

In Shanghai Shenhua Football Club v. Shanghai Teleitong Trade, Gazette of the Supreme Court, vol. 69, no.1 (2001), the defendant used the name of the plaintiff, a Chinese national football champion in an advertisement. The court held that the defendants were using the plaintiff’s identity to pursue commercial interests and required authorization for doing so.

In 2004, a Fujian company registered the domain names of China’s gold medalists in the Athens Olympics, , without their authorization. After a public outcry, the company gave up the domain names.

In the run-up to the Beijing Olympics, China’s General Administration of Sport preregistered most of the names of China’s Olympic athletes, giving away the domain names to the country’s gold medalists as a gift. The rest of the domain names were returned following an appeal by the CNNIC.

Is the law the same in Hong Kong?

The Hong Kong Bill of Rights Ordinance protects private individuals from invasions of privacy by the government and public authorities, but not by private persons or organizations. Sports personalities have to rely on the UDRP, reinforced by passing off and trade mark law, in order to obtain protection against infringement for their identities.

China as a Legalist Society

Posted in Chinese Legal Issues, Doing Business in China with tags , , , , , on 04/08/2010 by David Griffith

What matters more? Confucian customs or the law of the land? Here is an interesting comparison of the two from THE GLOBAL POST.

“When we say that China is a “Confucian society” we will often point to closer family relationships as a key indicator. Family obligations just seem to demand more of an individual, in terms of time and attention, than is the case, say, in the US. And we will then invoke the Confucian ideals of caring for elders and parents to suggest a historical culture continuity in Chinese society: Confucian morals demanded care of social and family relationships, Chinese people dutifully followed those Confucian principles, and thus China has been a Confucian society historically and continues to be one today.

Now, there may be some truth in that outlook. But why do we insist on ignoring the historical fact of Legalist political and administrative power and its societal and cultural ramifications? For instance, why have Chinese sons obeyed Chinese fathers? Is it because they have internalized the moral message and goodness of Confucianism? Or is it because they lived, before the twentieth century, within a legal system that facilitated parental corporal punishment of disobedient children, even to the extent of treating leniently fathers who might kill wayward sons? That is to say, obedience was something that was imposed through external threats of violence and punishment, not something that was cultivated from within through ethical consideration. OK, I know, Legalist punishment and Confucian suasion cannot really be separated one from the other because they existed together historically. But that is just my point. Legalist coercion was the facilitator of Confucian morality. China may have produced obedient children without Confucianism, simply through the exigencies of Legalism. Han Fei Tzu argued that the opposite was not the case: obedience could not be secured through Confucian morality alone.

Long story short: obedience of children to parents cannot be explained by Confucianism alone, because Confucianism alone did not produce it historically. Legalism was at least as important as Confucianism in this regard. So, why do we generalize that China is a “Confucian society” and not a “Legalist society”?

Similarly, in the realm of politics, there is nothing inherent in Confucianism to make it anti-democratic. Yes, historically, it was used to justify authoritarianism. But that was determined by its fusion with, and political dependence on, Legalism, which puts forth a robust theory of political power and authoritarianism. Yet when we talk about the possibilities for Chinese democracy, we will hear some analysts invoke Confucianism as an obstacle. China was not a democracy, and, by implication, cannot now be a democracy, they will say, because of its Confucian political authority. But what about Legalism? That, to my mind, is at least as influential in limiting Chinese democratic possibilities. Legalism does not tolerate any separation of powers or power sharing. It is focused on the ruler maintaining his position. It is the most cynical political realism. And it is clearly anti-democratic. Why don’t we refer to that Chinese tradition when we discuss the historical experience of democracy in China?

I could go on, but you get the idea. There are a variety of ways that Legalism has fundamentally shaped Chinese society and politics. It is, I would contend, impossible to isolate the historical effects of Confucianism without reference to Legalism. And it could be the case the Legalism has actually had a greater impact and longer lasting presence in Chinese life (the authoritarianism of the CCP has certain resonances with the Legalist past, as Mao was willing to admit…) than Confucianism. Thus, it seems to me, that China is at least as much a “Legalist society” as it is a “Confucian society.”

But we don’t say that. Perhaps because we don’t want it to be true. Confucianism is nicer, more humane. It is a moral theory that strives toward a better world. And it is certainly an important part of Chinese tradition. But that does not change the fact that Legalism, too, has had a profound presence in Chinese history. It is largely responsible for the centralized, bureaucratic state, which plays such a central role in defining and reproducing Chinese society and culture over the centuries. And it lives on (unfortunately in my view) in the continuing experience of authoritarianism in Chinese politics. We might want to say, and believe, that China is a “Confucian society,” but I am afraid we must accept the dreary reality that China, too, is a “Legalist society.”

So, why am I saying all of this? It is inspired by my thinking about whether we can say that China is a “Confucian society” now. And, in realizing that it probably is not, I am looking to wrest Confucianism from Legalism. I see Confucianism as a great and good moral practice, something that if more of us practiced could create better outcomes in the world. But there are many things that get in the way of the contemporary practice of Confucianism. Modernity, in and of itself, is one. But the vestiges of the Legalist past, and the traces of the Legalist present, in China today are another. If we are ever to find a way forward to Humanity – ren – we have to disentangle Confucianism from Legalism.