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Domain name dispute reforms introduced. By: Cho, Tae-Yeon; Seo, Ik-Hyun. Managing Intellectual Property, Nov2004, Issue 144, Following p59-59, 4p, 2 Color Photographs; Abstract: This article reports that domain names in Korea dispute reforms. Early decisions on domain names in Korea have provided rights owners with mixed results. But tae-Yeon Cho and Ik-Hyun Seo of Cho& amp; Partners in Seoul argue that new laws will be more effective in deterring cybersquatters. It was only a few years ago that domain name disputes were still a novelty in Korea. The new provision prohibits the registration, possession, transfer or use of a domain name by one who does not have legitimate rights to it, where the domain name is identical or similar to another's name, trade name, trade mark or indication that is widely recognized in Korea, where the purposes of the registrant are listed in the article.; (AN 15229311)
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Section: Sponsored editorial: Korea: domain names
Domain name dispute reforms introduced
Early decisions on domain names in Korea provided rights owners with mixed results. But tae-Yeon Cho and Ik-Hyun Seo of Cho & Partners in Seoul argue that new laws will be more effective in deterring cybersquatters
It was only a few years ago that domain name disputes were still a novelty in Korea. When the first .kr based domain name disputes began to arise in the late 1990s, there were no proceedings tailored for this specific problem, leaving companies no other option but civil litigation. A handful of civil actions were cautiously pursued at the earliest stages. However, it was clear that the courts were having a difficult time framing this new problem within the context and structure of existing laws (mainly trade mark and unfair competition claims), which were historically designed and interpreted for conventional situations where physical goods or signs were involved. The first set of such decisions were quite mixed in both results and analysis.
In January 2002, the Korea Network Information Centre (KRNIC), which is responsible for assigning and managing .kr based domain name registrations, created the Domain Name Dispute Resolution Committee (DDRC) and established a mediation procedure for domain name disputes. Because it was not a legal proceeding, the only remedy under the newly-created mediation was either cancellation or transfer of the domain name registration in dispute. However, it proved to be an enormous success, and in most cases, the preferred option over costly litigation where little, if any damages, could be expected anyway. The grounds for the mediation procedure included those based on traditional trade mark and unfair competition claims, but also added a completely new provision for bad faith registration, which covered a great deal of cases that would not have easily fallen into a traditional trade mark or unfair competition theory.#p#分頁標題#e#
Recognizing the need for formal laws governing domain name disputes, the government passed two new laws that took effect in July 2004. First, a new domain name provision (effective as of July 21 2004) was added to the Unfair Competition Prevention Act (UCPA). The new provision prohibits the registration, possession, transfer or use of a domain name by one who does not have legitimate rights to it, where the domain name is identical or similar to another's name, trade name, trade mark or indication that is widely recognized in Korea, where the purposes of the registrant are one of the following:
1.he intended to sell or lease it to one with a legitimate right or a third party;
2.he intended to interfere with the registration or use of the domain name by one with a legitimate right; or
3.aside from the above, he intended otherwise to obtain a commercial profit.
There are a number of remarkable points in this new legislation, particularly in the context of filling problematic gaps in the previously existing laws. This will be explained in more detail later.
In addition to the new UCPA provision, an even broader legislation took effect on July 30 2004 — the Act Concerning Internet Address Resources (ACIAR). The ACIAR prohibits the registration of a domain name for the purposes of interfering with the registration of a domain name by a person with a legitimate right, or for the purposes of obtaining unjust gain from a person with a legitimate right. The ACIAR is broader than the UCPA provision in that it is not premised on trade mark or similar rights, but more broadly on any legitimate right to the domain name. Also unlike the UCPA provision, widely known status is not required.
Under the ACIAR, a non-binding mediation procedure has been established. When the ACIAR was approved by the National Assembly in December 2003, there were many questions as to how the ACIAR mediation would affect the mediation available via the DDRC. After recent working level discussions, at least some points have been clarified.
On or about August 10 2004, the KRNIC will be dissolved and all of its rights and duties will be conveyed to the National Internet Development Agency of Korea (NIDA), which was newly created under the ACIAR. The DDRC, the organization under the KRNIC that has been in charge of domain name mediations, will be dissolved after it resolves its docket of pending cases. Mediation filed under the ACIAR on or after July 30 2004 will now be handled by the newly-created Internet Address Dispute Resolution Committee (IADRC). Exactly what happens after a nonbinding mediation decision by the IADRC, as well as other details of the proceeding, has not yet been confirmed.
The impact of the new laws on future disputes
Based on the breadth of the new laws now directly covering domain names, they can be viewed as greatly strengthening the position of trade mark owners facing a domain name issue in Korea. The new laws have, in several ways, patched up gaps in the protection that was available before.#p#分頁標題#e#
The problems of establishing use
One of the main hurdles in asserting conventional claims against a cybersquatter was the issue of use. There were many cases in which the cybersquatter simply obtained the registration, and was not using the domain name. This was determined by the courts even from the early stages as not constituting use. In other words, registration alone was not found to be use. Use is required to sustain a claim under trade marks, unfair competition and dilution laws, which are the most commonly asserted legal claims against a cybersquatter.
Even where the domain name is used to operate an active site, this does not necessarily constitute use for the purposes of a trade mark claim. In a recent Supreme Court decision (decided February 13 2004, 2001 Da 57709) involving rolls-royce.co.kr, the Court rejected the plaintiff's argument that there had been trade mark use, and accordingly dismissed the trade mark infringement claim. The defendant used the domain name rolls-royce.co.kr to operate a site, but did not use Rolls Royce or anything similar to it in the site itself. The plaintiff argued that the domain name itself was trade mark use, serving a purpose akin to a business sign or a label. This argument was rejected, and the Court's reasoning suggests that a very traditional analysis will apply. In other words, did the defendant use a mark identical or similar to the plaintiff's registered mark in the site itself? And do the goods or services of the defendant offered through the site fall within the scope of the asserted trade mark registration?
Similarly, another recent Supreme Court decision (decided May 14 2004, 2002 Da 13782) also found that use of the domain name, in itself, does not constitute use as required for an unfair competition claim. The dispute involved the domain name viagra.co.kr, which the defendant operated to sell products. In line with the rollsroyce.co.kr decision, the Court in viagra.co.kr also concluded that the domain name did not serve to indicate the source of the goods available on the subject site.
With regard to use under a dilution claim (which was added to the Unfair Competition Prevention Act (UCPA) and took effect on July 1 2001) the two above-mentioned decisions are a bit different in their conclusions and reasoning. Essentially, a dilution claim consists of the following elements: (1) the asserted identifier must be famous in Korea (registration is not required), (2) there must be similarity between the asserted identifier and the defendant's identifier, (3) the defendant's use of the identifier must be without any justification (such as non-commercial use or as prescribed by presidential decree), and (4) damage to the distinctiveness or reputation of the asserted identifier must be shown.
In rolls-royce.co.kr, the dilution claim was rejected because the Supreme Court found that the defendant used his site for non-commercial purposes. The site provided information on a variety of topics. The Court noted that there were no fees to use the site, and there were no commercial banners or paid advertising involved with the site. The plaintiff noted that the defendant had named an unreasonably high sales price during negotiations between the parties, an argument that could have relevance in other jurisdictions. However, the Court flatly rejected such facts as evidence supporting a finding of commercial purpose.#p#分頁標題#e#
In viagra.co.kr, the Supreme Court found that that the defendant had used Viagra as a business identifier. Unfortunately, it is not completely clear whether the Court was referring to the defendant's use of the domain name, or whether it was also relying on the few instances of Viagra in the site itself.
As emphasized by the two recent Supreme Court decisions, establishing use under traditional claims has proved troublesome in cybersquatting cases. To summarize the decisions, trade mark and unfair competition claims will fail against a cybcrsquatter if he has not used the asserted trade mark within the site, and in a way to indicate the source of his goods or services. Further, dilution claims will fail if the cybersquatter operates his site for a non-commercial purposes. Even where the site is used for a commercial purpose, it is not completely clear whether the domain name itself constitutes "use" or whether the asserted trade mark must also be used within the content of the site.
With the new laws and changes that have recently taken effect, the issue of proving use should become irrelevant. Under the new domain name provision of the UCPA, liability is triggered by registration, possession, transfer or use of the subject domain name. Under the ACIAR, liability arises from the act of registration. Where traditional claims failed, these two new provisions can be asserted even against cybersquattcrs who have done nothing more than simply register the disputed domain name. Also, given the scope of prohibited activities under the new UCPA provision, others involved with the cybersquatter in holding or transferring the subject domain name arc also subject to liability. In the past, given the weakness of the legal claims, it was a common practice of cybersquatters frequently to transfer ownership of a domain name to others to make the commencement of mediation or litigation more difficult for the trade mark owner.
With these new provisions, the defence of non-commercial use, successfully asserted by the defendant in the rollsroyce.co.kr case in connection with the dilution claim, is not available. Also, the fact that the defendant made an offer to sell the registration for an unreasonable price, which was dismissed as irrelevant by the Supreme Court in rollsroycc.co.kr, could become very relevant evidence of unfair intent under the new UCPA provision as well as the ACIAR.
Unregistered and not quite famous marks
Under the traditional legal theories, trade mark owners who had not yet registered their mark and whose mark could not be easily established as being famous in Korea (although perhaps famous in other countries) were very much out of luck in court. A trade mark infringement claim requires a registration in Korea, and both the unfair competition and dilution claims require proof that the asserted mark is famous in Korea.
This dilemma was common for younger companies that recently entered the Korean market, or have attracted the attention of cybersquatters who have learned of the company's success in other countries. It has also been a common problem for even large established multinational companies when they launch new products and services. Typically, cybersquatters will see a press release or news article about the new product or service, and immediately race to obtain the domain name registration, long before any trade mark registration can be obtained. Also, because of the short time between a press release and the registration of the domain name by the cybersquatter, it is generally difficult to establish the fame of the mark, which is traditionally supported by evidence of long use in Korea.#p#分頁標題#e#
The ACIAR now provides a legal claim that can be asserted where the trade mark owner does not have a registration and proving fame in Korea would be difficult. Neither trade mark registration nor fame is required under the ACIAR. Rather, the plaintiff needs simply to establish that he has a legitimate right.
Deterring cybersquatters
Very significant changes have taken place in recent times in Korea with regard to domain name rights. New laws that have now patched-up some of the gaps in the prior laws have taken effect, giving a broader scope of rights to assert against cybersquatters. While there are still points that have not yet been clarified by the law or related regulations, for the most part most agree that the new laws will benefit trade mark owners. In principle, many of the legal shelters behind which cybersquatters hid have been eliminated by the creation of these new legal claims, and this hopefully should serve as a deterrent to cyber-squatters.
Profile: Tae-Yeon Cho
Tae-Yeon Cho is an attorney at law in Korea. He speaks Korean, Japanese and English. Cho has served as lead counsel for a number of significant cases involving intellectual property issues, as well as commercial subjects. In his most recent case, Cho obtained an award of approximately $100 million for his Japanese client against a Korean defendant company, one of the largest monetary awards ever rendered in Korea. He previously served as an executive member of the Domain Name Dispute Resolution Committee and now serves as a director of the newly-formed National Internet Development Agency of Korea. He has been recognized by Asia Law S Practice as one of Asia's leading business lawyers in intellectual property and as one of four leading individuals in intellectual property by the Asia Pacific Legal 500 (2001-2004).
From 1983 to 1991 he was a member of Central International Law Firm and from 1991 to 2002, a member of Lee International IP & Law Group.
Profile: Ik-Hyun Seo
Ik-Hyun Seo is registered as both an attorney at law and a patent attorney in the US and speaks English and Korean. He is experienced in both US and Korean intellectual property litigation and prosecution matters, and represents a broad range of clients, from high-tech companies to luxury fashion companies. His detailed knowledge of the similarities as well as differences between these two jurisdictions has been an invaluable asset in advising foreign clients on effective IP management and enforcement strategies in Korea. He was recognized as one of the four leading individuals in intellectual property by the Asia Pacific Legal 500 (2001-2004).
He was a member of Welsh & Katz in Chicago, Illinois from 1995 to 1999 and Lee International IP & Law Group in Seoul form 1999 to 2002.
Trade mark and unfair competition claims will fail against a cybersquatter if he has not used the asserted trade mark within the site, and in a way to indicate the source of his goods or services
Others involved with the cybersquatter in holding or transferring the subject domain name are also subject to liability#p#分頁標題#e#
留學生法學碩士dissertation范文PHOTO (COLOR): Tae-Yeon Cho
PHOTO (COLOR): Ik-Hyun Seo
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