FREQUENTLY ASKED QUESTIONS

To which disputes does the HKDNR Domain Name Dispute Resolution Policy apply?

Answer: The HKDNR Domain Name Dispute Resolution Policy applies to disputes involving registered .hk domain names.

What kind of action can be taken if one wishes to file a complaint regarding a registered .hk domain name?

Answer: Under the HKDNR Domain Name Dispute Resolution Policy the action to be taken is to commence an arbitration proceeding by filing a Complaint with an Arbitration Dispute Provider appointed by HKDNR in accordance with the HKDNR Domain Name Dispute Resolution Policy, the HKDNR Domain Name Dispute Resolution Policy Rules of Procedure and the Supplemental Rules of the Arbitration Dispute Provider. For the time being the sole Arbitration Dispute Provider is the Hong Kong International Arbitration Centre (HKIAC).

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Who is entitled to commence an arbitration proceeding under the HKDNR Domain Name Dispute Resolution Policy and the HKDNR Domain Name Dispute Resolution Policy Rules of Procedure?

Answer: Any person or company is entitled to commence such a proceeding.

On what grounds can an arbitration in regard to a dispute in connection with a registered .hk domain name be based?

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:-

  1. 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
  2. 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
  3. the registered .hk domain name in question has been registered and is being used in bad faith.

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?

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:-

  1. 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
  2. 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
  3. the registrant registered the .hk domain name in question primarily for the purpose of disrupting the business of a competitor; or
  4. 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.

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 is the role of the Hong Kong International Arbitration Centre in the dispute resolution process regarding .hk domain names?

Answer: The Hong Kong International Arbitration Centre (HKIAC) has been appointed by the HKDNR for the time being as the sole dispute resolution provider for disputes involving .hk domain names. As such the HKIAC administers the arbitration proceedings brought under the HKDNR Domain Name Dispute Resolution Policy in accordance with the HKDNR Domain Name Dispute Resolution Policy Rules of Procedure and the HKIAC's own Domain Name Dispute Supplemental Rules.

What are the steps in the arbitration process in regard to a dispute involving a .hk domain name?

Answer: Generally speaking, the steps are as follows:-

  1. The Complainant files a Complaint with the Hong Kong International Arbitration Centre (HKIAC);
  2. 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;
  3. the registered holder of the .hk domain name in question files a Response;
  4. 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;
  5. the Panel determining the arbitration renders its decision;
  6. if the decision of the Arbitration Panel requires that the .hk domain name in question be cancelled or transferred, the decision is implemented.

Also see the Flow chart of Proceedings.

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How long should a .hk arbitration proceeding take?

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

What is the language of a .hk arbitration proceedings?

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?

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.

How are fees in regard to a .hk arbitration proceeding to be paid?

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 ?

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.

Can a Complaint include more than one disputed .hk domain name?

Answer: No. According to Paragraph 3(c) of the HKDNR Domain Name Dispute Resolution Policy each .hk domain name which is disputed must be the object of a separate Complaint.

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Is the HKDNR to be involved in an arbitration proceeding involving a .hk domain name?

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.

If a Complainant duly commences a .hk arbitration proceeding, can the Complainant still go to courts in Hong Kong?

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.

Will a Party against whom a .hk arbitration proceeding is filed have recourse to the courts in Hong Kong?

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.

Where can I obtain information about who is the registered holder of a .hk domain name?

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?

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.

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?

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.

What happens if a Response is not filed on time or at all?

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?

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.

How long does an Arbitration Panel have in order to render a decision in a .hk arbitration proceeding?

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?

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.

Is it possible to challenge a decision in respect of a .hk domain name made by an Arbitration Panel?

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).

How is a decision of an Arbitration Panel in respect of a .hk domain name carried out?

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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