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On what grounds can
an arbitration in regard to a dispute in connection with a
registered .hk domain name be based?
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Answer:
Paragraph 4(a)
of the HKDNR Domain Name Dispute Resolution Policy states
that the Complainant commencing an arbitration proceeding
in connection with a registered .hk domain name must prove
the following:-
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(i) |
the .hk domain name
in question is identical or confusingly similar to a
trademark or service mark in Hong Kong to which the
Complainant has rights; and
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(ii) |
the person or company
who is the registered holder of the .hk domain name
in question has no rights or legitimate interests in
respect of the domain name; and
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(iii) |
the registered
.hk domain name in question has been registered and
is being used in bad faith.
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It should be noted that in order to succeed in an arbitration
proceeding under the HKDNR
Domain Name Dispute Resolution Policy, it is necessary
for the Complainant to prove that all three (3) elements
are present.
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What constitutes "bad
faith" in connection with the registration and use of a registered
.hk domain name?
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Answer:
Paragraph 4(b)
of the HKDNR Domain Name Dispute Resolution Policy, gives
the following as examples of evidence of the presence of bad
faith, it being important to note that these are examples
and are indicative only and are not limitative:-
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(i) |
circumstances indicating
that the person or company who or which registered or
acquired the .hk domain name in question did so primarily
for the purpose of selling, renting or otherwise transferring
the .hk domain name to the Complainant who is the owner
of the relevant trademark or service mark or to a competitor
of that Complainant, for valuable consideration in excess
of the registrant's documented out-of-pocket costs directly
related to the domain name involved; or
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(ii) |
the registrant registered
the .hk domain name in question in order to prevent
the owner of the relevant trademark or service mark
from reflecting the mark in a corresponding domain name,
provided that the registrant has engaged in a pattern
of such conduct; or
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(iii) |
the registrant registered
the .hk domain name in question primarily for the purpose
of disrupting the business of a competitor; or
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(iv) |
by using the .hk
domain name in question, the registrant intentionally
attempted to attract, for commercial gain, Internet
users to the registrant's web site or other on-line
location, by creating the likelihood of confusion with
the Complainant's mark as the source, sponsorship, affiliation,
or endorsement of the registrant's web site or location
or of a product or service on the registrant's web site
or location.
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The final decision as to whether bad faith is
present or not is left to the determination of the Arbitration Panel
dealing with the arbitration proceeding in question.
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What are the steps
in the arbitration process in regard to a dispute involving
a .hk domain name?
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Answer:
Generally speaking, the steps are as follows:-
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(i) |
The Complainant
files a Complaint with the Hong Kong International Arbitration
Centre (HKIAC);
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(ii) |
The HKIAC notifies
the registered holder of the .hk domain name in question
of the Complaint and sends a copy of the Complaint to
the registered holder;
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(iii) |
the
registered holder of the .hk domain name in question
files a Response;
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(iv) |
the HKIAC selects
the Arbitration Panel of one or three persons, as the
case may be, who will make a determination in regard
to the dispute;
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(v) |
the Panel determining
the arbitration renders its decision;
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(vi) |
if the decision
of the Arbitration Panel requires that the .hk domain
name in question be cancelled or transferred, the decision
is implemented.
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Also see the Flow
chart of Proceedings.
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How long should a
.hk arbitration proceeding take?
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Answer:
The arbitration process should under normal circumstances
take less than 60 days from the date a Complaint is duly filed
with the Hong Kong International Arbitration Centre until
the Parties and the HKDNR are notified of the decision of
the Arbitration Panel.
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What is the language
of a .hk arbitration proceeding?
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Answer:
Paragraph 11 of
the HKDNR Domain Name Dispute Resolution Policy Rules of Procedure
states that unless otherwise agreed between the Parties, the
language of the arbitration proceedings shall be the language
of the Registration Agreement, subject always to the authority
of the Arbitration Panel to determine otherwise, having regard
to all the circumstances of the arbitration proceeding. In
addition an Arbitration Panel may order that any documents
submitted in a language other than the language of the arbitration
proceeding shall be accompanied by a translation in whole
or in part into the language of the arbitration proceeding.
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How much does an arbitration
proceeding in regard to a .hk domain name cost?
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Answer:
The cost of the arbitration proceedings are set by
the Domain Name Dispute Resolution Provider and approved by
the HKDNR. Since for the time being, the Hong Kong International
Arbitration Centre (HKIAC) is the sole Domain Name Dispute
Resolution Provider appointed by the HKDNR in regard to .hk
domain name disputes it is its fee schedule which is applicable.
According to Article
15 of the HKIAC's Domain Name Dispute Supplemental Rules,
the fees for an Arbitration Panel consisting of one (1) Panelist
is HK$8,000, including HK$4,000 for the Panelist. The fees
for an Arbitration Panel consisting of three (3) Panelists
is HK$16,000 including HK$12,000 for the Panelists. If there
are any deficiencies in the Complaint an additional HK$2,000
shall be paid by the Complainant. Normally, the Complainant
is responsible for paying all the fees, unless the Respondent
(i.e. the holder of the .hk domain name which is in dispute)
chooses to have the arbitration heard by an Arbitration Panel
of three (3) Panelists whereas the Complainant has chosen
to have the Complaint decided by one (1) Panelist, in which
case the fees are to be shared equally between the Parties.
It should also be noted, that according to Paragraph
18(d) of the HKDNR Domain Name Dispute Resolution Policy Rules
of Procedure in the exceptional circumstances that an
in-person hearing is required, there will be additional fees
to be paid which amount will be established by the HKIAC after
consultation with the Parties and the Arbitration Panel.
The fees referred to above do not include any payments
that a Party might have to pay to a lawyer or other representative
representing such Party, which is a matter entirely for such
Party.
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How are fees in regard
to a .hk arbitration proceeding to be paid?
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Answer:
According to Article
15(3) of the Hong Kong International Arbitration Centre’s
Domain Name Dispute Supplemental Rules, fees are to be
paid to the Hong Kong International Arbitration Centre (HKIAC)
free of any bank charges, transfer fees or any withholdings,
in Hong Kong Dollars (HK$) only, by way of cheque, draft or
telegraphic transfer. Cheques or drafts are to be made payable
to "Hong Kong International Arbitration Centre".
Telegraphic transfers are to be made as follows:
Account Name: Hong Kong International Arbitration
Centre
Account Number: 004 567 190897 001
HSBC
1 Queen's Road Central
Hong Kong
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Is it necessary for
a Party to be represented by a lawyer in a .hk arbitration
proceeding?
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Answer:
No, it is not required, although a Party might well
find it useful to engage the services of a legal advisor for
the purpose. A Party may represent itself or be represented
by any person such Party may choose.
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Is the HKDNR to be
involved in an arbitration proceeding involving a .hk domain
name?
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Answer:
No. According to Paragraphs
4(g) and 5 of the HKDNR Domain Name Dispute Resolution Policy,
the HKDNR will not participate in the administration or conduct
of an arbitration proceeding in respect of a .hk domain name,
nor will the HKDNR be liable as a result of a decision rendered
by an Arbitration Panel. The HKDNR is not to be named as a
party or otherwise in any arbitration proceeding.
The foregoing having been said, the HKDNR of course
will implement a decision of an Arbitration Panel which calls
for the cancellation or the transfer of a .hk domain name.
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If a Complainant
duly commences a .hk arbitration proceeding, can the Complainant
still go to courts in Hong Kong?
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Answer:
Generally speaking, under the Arbitration
Ordinance (Chapter 341), if a Party has agreed to submit
a dispute to arbitration in Hong Kong, the courts in Hong
Kong will not intervene except in very limited and exceptional
cases set out in the Arbitration Ordinance.
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Will a Party against
whom a .hk arbitration proceeding is filed have recourse to
the courts in Hong Kong?
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Answer:
Generally speaking, under the Arbitration
Ordinance (Chapter 341), if a Party has agreed to submit
a dispute to arbitration in Hong Kong, the courts in Hong
Kong will not intervene except in very limited and exceptional
cases set out in the Arbitration Ordinance.
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Where can I obtain information
about who is the registered holder of a .hk domain name?
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Answer:
Information on registered .hk domain name holders can be obtained
by clicking on WHOIS on the Hong Kong Domain Name Registration
Company Limited (HKDNR)'s website at www.hkdnr.net.hk.
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What happens if a
Complaint in respect of a .hk domain name is filed and it
is determined by the Hong Kong International Arbitration Centre
(HKIAC) to be deficient when the HKIAC undertakes its Compliance
Review?
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Answer:
According to Article
6 of the HKIAC's Domain Name Dispute Supplemental Rules,
if the HKIAC determines that there are deficiencies in the
Complaint, the HKIAC shall notify the Complainant of such
deficiencies and the Complainant shall remedy such deficiencies
within five (5) calendar days, as well, according to Article
15(2) of the HKIAC's Domain Name Dispute Supplemental Rules
the Complainant must pay to the HKIAC at the time the Complainant
submits the correction of the deficiencies an additional fee
of HK$2,000.
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Is it necessary for
a Party against whom a Complaint in respect of a .hk domain
name has been filed with the Hong Kong International Arbitration
Centre to respond?
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Answer:
Yes. Under the terms of the Registration Agreement
between the HKDNR and the registered holder of a .hk domain
name, the latter agreed to participate in any arbitration
proceeding commenced in respect of the .hk domain name in
question.
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What happens if a
Response is not filed on time or at all?
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Answer:
According to Paragraph
5 of the HKDNR Domain Name Dispute Resolution Policy Rules
of Procedure and Article
7 of the Hong Kong International Arbitration Centre's Domain
Name Dispute Supplemental Rules, a Party who is the registered
holder of a .hk domain name against whom a Complaint is filed
with the Hong Kong International Arbitration Centre must respond
within twenty (20 calendar days of the date the HKIAC transmits
the complaints to such Party. In the event that such person,
otherwise known as the Respondent, does not file a Response
(including the payment of any relevant fees) within the said
twenty (20) calendar days, the Respondent will be considered
to be in default and the Hong Kong International Arbitration
Centre will proceed to appoint the Arbitration Panel for the
case informing the Arbitration Panel of the Respondent's default.
The Arbitration Panel will proceed to decide the case based
on the information available to it and the Arbitration Panel
may draw such inferences as it deems appropriate from the
Respondent's failure to file a Response in a timely manner.
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How is an Arbitration
Panel established?
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Answer:
The Arbitration Panels are composed of one (1) or
three (3) Panelists, as the case may be. The Hong Kong International
Arbitration Centre (HKIAC) maintains a list
of Panelists who the HKIAC considers to be independent,
reputable, knowledgeable, experienced, impartial and suited
to undertake the task of deciding disputes in respect of .hk
domain names. The HKIAC selects the Panelists to sit on an
Arbitration Panel on a case-by-case basis in light of the
following criteria:- the nature of the dispute, the availability
of the Panelist(s), the identity of the Parties, the independence
and impartiality of the Panelist (s), any stipulations in
the relevant Registration Agreement and any suggestions made
by the Parties themselves in accordance with Paragraph
6 of the HKDNR Domain Name Dispute Resolution Policy Rules
of Procedure.
An Arbitration Panel is appointed after the date on
which a Response is duly filed or, if the Response, is not
filed in a timely manner, after the last date the Response
was supposed to have been filed. Prior to an appointment,
a proposed Panelist must declare in writing to the Parties
and the HKIAC any circumstances which could give rise to any
justifiable doubt as to the Panelist's impartiality or independence
or prevent a prompt resolution of the dispute in question.
Unless the Parties otherwise agree, no person shall serve
as a Panelist in a dispute in which that person has any interest
which, if a Party knew of it, might lead the Party to think
that the Panelist might not be impartial or independent.
According to Article
9(4) of the HKIAC's Domain Name Dispute Supplemental Rules,
a Party may challenge a Panelist's impartiality or independence
by filing a written request to the HKIAC within seven (7)
calendar days of the date of the receipt by such Party of
the notice of appointment of the Panelist in question. The
written request must state the circumstances likely to give
rise to justifiable doubt as to the relevant Panelist's impartiality
or independence, together with specific reasons therefore.
The HKIAC, in its sole, discretion, shall decide whether such
doubts are justified, and if the HKIAC so finds, the HKIAC
shall remove the Panelist against whom the challenge was made
and replace such Panelist with another Panelist from the HKIAC's
list of Panelists.
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How long does an Arbitration
Panel have in order to render a decision in a .hk arbitration
proceeding?
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Answer:
According to Paragraph
15 (b) of the HKDNR Domain Name Dispute Resolution Policy
Rules of Procedure, in the absence of exceptional circumstances
as determined by an Arbitration Panel in its sole discretion,
an Arbitration Panel shall forward to the Hong Kong International
Arbitration Centre (HKIAC) the Arbitration Panel’s decision
on a Complaint within twenty-one (21) calendar days of the
appointment of the Arbitration Panel.
The HKIAC shall communicate the decision of an Arbitration
Panel to the Parties and the HKDNR within three (3) calendar
days of the receipt by the HKIAC of the decision.
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What kind of decision
can an Arbitration Panel make in a .hk domain name arbitration?
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Answer:
A decision by an Arbitration Panel must be in writing.
The kind of decisions an Arbitration Panel may render are
limited. That is, an Arbitration Panel might decide in one
of two ways - (a) that the Complaint is not justified, in
which case the existing registered .hk domain name holder
shall be entitled to retain the .hk domain name in question;
or (b) the Arbitration Panel may decide that the Complaint
is justified in which case the Arbitration Panel will order
that the .hk domain name in dispute should be cancelled or
transferred to the Party which brought the Complaint.
It should be noted that if an Arbitration Panel finds that
a Complaint was brought in bad faith, the Arbitration Panel
is required to state in its decision that this was the case
and declare that the Complaint constituted an abuse of process.
An Arbitration Panel may not make money awards nor awards
relating to costs, including without limitation, lawyer's
fees and costs.
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Is it possible to
challenge a decision in respect of a .hk domain name made
by an Arbitration Panel?
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Answer:
Decisions made by an Arbitration Panel in respect of
a .hk domain name are final and binding and may not be appealed
to a Court in Hong Kong, except in very exceptional circumstances
as set out in the Arbitration
Ordinance (Chapter 341).
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How is a decision
of an Arbitration Panel in respect of a .hk domain name carried
out?
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Answer:
Paragraph 4(j)
of the HKDNR Domain Name Dispute Resolution Policy states
that if an Arbitration Panel decides that a .hk domain name
registration should be cancelled or transferred, the HKDNR
will wait ten (10) business days after it is notified by the
Hong Kong International Arbitration Centre of the Arbitration
Panel's decision following which HKDNR will make the relevant
cancellation or transfer.
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