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:-
- 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
- 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
- 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:-
- 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
- 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
- the registrant registered the .hk domain name in question primarily
for the purpose of disrupting the business of a competitor; or
- 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:-
- The Complainant files a Complaint with the Hong Kong International
Arbitration Centre (HKIAC);
- 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;
- the registered holder of the .hk domain name in question files a
Response;
- 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;
- the Panel determining the arbitration renders its decision;
- 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.