Truong Quoc Viet, Associate, Indochine Counsel
In Viet Nam, the first ."vn" domain name was registered in 1997 and the quantity of ."vn" domain names has rapidly increased. There were 286,561 registered items by September, 2014 (source: APTLD Member Statistics and Growth Report).
The more domain names exist, the more disputes arise, but there are no "vn" domain-name disputes that have been absolutely resolved. This article will provide analyses to clarify some challenges in resolving them.
Generally, the resolution of a "vn" dispute is determined by a written agreement between the related parties or a decision by competent authorities. It is then executed by the Viet Nam Internet Network Information Centre (VNNIC) under the Ministry of Information and Communications (MIC).
There are two types of solutions to resolve "vn" domain name disputes. They are provided in two main branches of law on Information Technology and Intellectual Property.
The Law on Information Technology, dated June 29, 2006, and its guiding Circular, No 10/2008/TT-BTTT, dated December 24, 2008, provide three resolution solutions, namely amicable settlement, arbitration remedies and civil remedies.
The parties in a dispute may negotiate and reach an amicable agreement regarding the domain name in question. The agreement will be sent to the registrar of such domain name or VNNIC for execution.
In fact, it is difficult to reach an amicable agreement because the requested party holding the domain name in question often does not have the goodwill to negotiate with the requesting party. In most cases, the requested party always demands an unreasonable large fee for transferring the domain name in question. If the requesting party does not accept that proposal, the requested party can stop the negotiation and the case will come to a standstill.
Both parties can agree to resolve the ."vn" domain name dispute at a valid arbitration centre. This solution is quite similar to rules of Uniform Domain Name Dispute Resolution Policy (UDRP) where the dispute is considered by a panel, whose decision is final.
However, by contrast, there are two conditions, (i) the dispute must have arisen in commercial activities; and (ii) both parties must establish a written document stating their unanimity in resolving the dispute via arbitration.
The above condition (i) has limited the number of disputes that can be resolved via arbitration, and the condition (ii) in practice may make this solution impossible because the requested parties have to agree on resolving via arbitration procedure when they know that it takes more time and there is an increased risk of losing the domain name in question.
Each party can file a lawsuit against the other at a competent court. Normally, the party holding the domain name in dispute is the defendant and the other is the complainant. The advantage of this solution is that the court can make a judgement regardless of the non-cooperation or the absence of the defendant.
In fact, engaging in any litigation always involves a lot of time and cost. In Viet Nam, it may takes from six months to more than two years to complete a common litigation and reach a judgement at the first hearing. It will take even more time if this judgement is appealed and must be considered at upper level courts.
One more solution is provided under the Law on Intellectual Property
It is noted that the branch of law on Intellectual Property has other independent regulations which consider the registration and use of a disputed domain name that causes damage to the goodwill and reputation of protected trademarks, trade names or geographical indicators as unfair competition. Therefore, in addition to the three solutions mentioned above, there is one more solution provided in the amended Law on Intellectual Property, Decree No 99/2013/ND-CP, dated August 29, 2013, and Circular No 11/2015/TT-BKHCN, dated June 26, 2015, namely administrative remedies.
According to these legal documents on intellectual property, the complainant can submit a request for handling administrative violation comprising the evidence against the party holding a disputed domain name to the inspectorates in the field of science and technology or information and communication. The competent inspectorates will consider the request and if the requested activities are considered as unfair competition, they can unilaterally impose administrative sanctions comprising a monetary fine and request for return of the disputed domain dispute to VNNIC.
This is the opportunity for the complainant to register this domain name and completely resolve the dispute. Compared to other solutions, the administrative remedies applied for resolving ."vn" domain name disputes seem to be the most useful and effective solution.
In fact, current regulations on administrative remedies do not provide interim injunctions such as maintaining the status quo or the prohibition of transferring the disputed domain name to a new holder and changing the registrar of the disputed domain name. It can cause a resolution via an administrative proceeding to be stopped if there is a major change of status quo during such proceedings.
Additionally, when the offending party does not voluntarily return the disputed domain name, it is also difficult to coerce them into obedience via VNNIC. The State authority, however, has full powers to do so, because administrative remedies are contrary to regulations on technology information, therefore VNNIC refuses to implement them.
Although the inspectorates have made much effort to handle "vn" domain name disputes and issue decisions on sanctioning administrative violations, many of them are pending at VNNIC. There are a few exceptions after lodging appeals against VNNIC to force them to implement the inspectorates' decisions.
In order to deal with the contradictions between two branches of law, MIC and MOIT are working together to issue a joint circular in respect of an effective "vn" domain name dispute resolution.
The foregoing information illustrates an outline of remedies for resolving ."vn" domain name disputes in Viet Nam. All of them have obstacles and disadvantages. In practice many disputes over international domain names which have similar essence with "vn" domain name disputes have been successfully resolved via UDRP or other international dispute resolution policies. So recognising UDRP or other suitable policies can be a good solution to overcome most of the current challenges for resolving "vn" domain name disputes in Viet Nam.