Hello! What's the difference between trademark right and domain name right? Generally, a domain name is a hierarchical character identifier used to identify and locate a computer on the Internet, which corresponds to the Internet protocol ip address of the computer. Because the ip address is not intuitive and easy to remember, the domain name is generated. Domain names are mainly composed of English letters, numbers, periods and other special symbols. By parsing, they will be automatically mapped with ip addresses, so that you can find the computer you want to access. The original intention of designing domain names is to express differences, but with the development of science and technology, domain names have produced commercial value. Whether domain name is a right or a new type of intellectual property is still controversial in academic circles. Some people argue that domain names are addresses on the Internet, not intellectual property rights, but independent rights or no rights; Some scholars in the United States hold a similar view that domain name registrants only enjoy the right to use but not the ownership [1]; Some people think that domain names can be treated as a kind of name right, and domain names can be protected as an extension of similar trademarks used in the Internet field. Some scholars believe that the domain name has a certain goodwill right because it has value, and it can generate certain income under the management and promotion of the domain name holder, thus forming a de facto intellectual property right and becoming an intangible asset of the holder; Some scholars believe that domain names have the same function as trademarks, so domain names can be regarded as service trademarks; Japanese scholars regard domain names as creditor's rights agreed by contract between domain name users and domain name registration agencies [②]. In China's judicial practice, domain names are not specifically defined, but are regarded as a civil right of the parties. The author believes that domain name is an online identification symbol, which is similar to the function of trademark and can meet the needs of identifying different online business activities. Therefore, the owners of domain names will carry out certain publicity and packaging, so that the identification function of domain names can be produced and developed, and the economic value of domain names can be realized. Therefore, no matter whether the registrant of the domain name conducts online business activities or only provides information services, the domain name has commercial value and becomes a business logo. However, domain names are very different from traditional intellectual property rights such as trademarks and trade names. For example, domain names are only transferable and have no licensing rights. The following mainly discusses the conflict between domain name right and trademark right. Two. Forms and causes of conflict between domain name right and trademark right (I) Forms of conflict between domain name right and trademark right: 1, domain name registration takes precedence. It means that after the domain name owner registers the domain name, the trademark registrant can apply for trademark registration and obtain the trademark right of the marked part of the domain name. At this time, the exclusive right to use a trademark cannot be extended to the domain name, because the domain name is global, and it doesn't matter whether it is regional or not. The trademark is strictly regional. Moreover, domain names are registered first and protected by law. 2. The registered domain name contains the name of another person's registered trademark. Domain names, like trademarks, have important recognition value, but the basis of domain name recognition is cyberspace. In order to expand Internet business, Internet users often have to create home pages on the Internet to promote corporate image. Internet users are generally willing to choose the same words as their trademarks as domain names to register and use, thus extending the established business reputation of trademarks to cyberspace. If the identifiable part of the domain name registered by the domain name registrant is the same as or similar to the name of another registered trademark, there will be disputes between the domain name owner and the trademark owner. The Trademark Law stipulates that the exclusive right to use a trademark cannot naturally extend to cyberspace, and the inclusion of registered trademarks of others in a domain name does not naturally infringe on the trademark rights of others. However, if the domain name is improperly used, such as the goods and services provided by the domain name owner to consumers on the website with its domain name as the identification mark are the same or similar to those provided by the trademark owner to consumers, which is enough to cause misunderstanding or misunderstanding of the domain name owner and the trademark owner by ordinary consumers, the conflict of rights between the domain name and the trademark is inevitable. In this case, the principle of protecting fair competition and the principle of protecting prior rights are mainly applicable [③]. 3. Malicious cybersquatting. It refers to the behavior of network users who know that the identification component of the domain name they apply for registration is the same as the registered trademark name of others, but still register it. There are usually two situations: first, the domain name of McDonald's company in the United States was maliciously squatted by others, and then the company spent $8 million to buy it back; The second is to use registered domain names to engage in unfair competition activities, such as preventing others from registering with their own trade names and trademarks and conducting online activities. The determination of malicious cybersquatting can be considered from several aspects: first, the domain name is the same as or confused with the trademark of the requester; Second, the domain name owner has no rights or legitimate interests in the domain name; Third, the domain name is maliciously registered and used [④]. The malice here can be judged from the following aspects: whether the cybersquatting behavior is profitable or not, in practice, some cybersquatters have obvious intentions of cybersquatting others' well-known registered trademarks and demanding high-priced transfer to seek illegitimate interests; What is the popularity of registered trademarks? If a well-known trademark is registered, it does not rule out that the domain name registrant has the intention to use other people's well-known trademarks to seek illegal interests. Of course, there are also "acts of goodwill" in cybersquatting, that is, overlap and similarity caused by factors other than domain name naming. 4. There are multiple registered trademark owners in the logo part of the same domain name. The scope of protection of trademark rights is limited to registered trademarks and goods approved for use. In general, trademark owners cannot rule out the use of the same or similar trademarks on different or similar goods. In reality, there are many phenomena that there are identical or similar trademarks on different or similar goods or services. If a domain name is registered with someone else's trademark, it may lead to disputes among multiple trademark owners about the ownership of the same domain name. To solve such disputes, we should adhere to the principle of protecting previously registered domain names. (II) Reasons for the conflict between domain name right and trademark right: 1. The contradiction between the uniqueness of domain name subject and the diversity of trademark subject. Due to technical limitations, domain names are absolutely unique in the world. A domain name cannot be enjoyed by multiple owners at the same time, and trademarks are not necessarily. In addition to well-known trademarks, trademarks can be the same in different categories of goods and services. Moreover, because trademarks are only valid in the countries that have ratified them, as long as the two countries have not acceded to the same international treaties on trademarks or bilateral international treaties, the same trademark can coexist in the same category of goods and services in the two countries. It is precisely because of this contradiction that subjects with the same trademark can coexist in the same kind of goods and services in the two countries. A common controversy is that the domain name used by Internet users happens to be the registered trademark of another company. What's more, two legal owners of the same trademark want to use their trademarks as domain names. 2, the results of the principle of open registration [5]. Domain name application is based on the principle of "first application, first registration". The domain name registration agency only examines the authenticity of the application materials of the domain name registration applicant, and is not responsible for substantive examination of whether the domain name infringes on the prior exclusive rights and interests of others. So the domain name registration service only provides technical services. For example, Article 23 of China's Interim Measures for the Administration of Internet Domain Name Registration stipulates that "domain name management units at all levels are not responsible for inquiring whether a user's domain name conflicts with a registered trademark or enterprise name or infringes on the interests of a third party. Any dispute arising from this conflict shall be borne by the applicant himself and bear legal responsibility. " Although this provision is to adapt to the development of the network, it also has disadvantages, because it means that cybersquatters can implement cybersquatting without any obstacles, that is, they cannot effectively prevent the conflict between domain name rights and trademark rights in advance. 3. The influence of commercial interests. Domain name has no commercial value, but with the development of e-commerce, its commercial value is increasingly apparent. It has become the electronic trademark of enterprise goods and services, the object of intellectual property rights, representing goodwill, and an intangible asset that can create huge benefits. Different from trademarks, one is used in the virtual network world and the other is used in real life. However, the existing trademark offices are limited and the domain names cannot be duplicated. There must be a conflict between the limited supply of trademark domain names and the unlimited demand for domain names. Some people scramble for those popular domain names and then sell them to trademark owners. With the development of information industry in China and driven by commercial interests, such disputes will increase. 4. The legal system is not perfect. There is no clear stipulation on the dispute between domain name and trademark in China's existing laws, which leads to many vague understandings and differences on the nature of domain name and the relationship between domain name and trademark. Without specific operation methods and clear responsibility methods and rules, it is impossible to form the deterrent effect of law and establish an effective preventive mechanism. Although China has also promulgated some relevant laws and regulations, on the whole, the number is relatively small, which is dwarfed by the rapid development of the online world. 202 1 the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Civil Disputes over Computer Network Domain Names is the only legal document involving domain name disputes at present. The rapid development of information industry and network economy is still weak. The imperfection of the law is also one of the reasons for the emergence and increase of domain name and trademark disputes. Three. There are two kinds of legal remedies for conflict prevention mechanism and conflict resolution, one is prevention beforehand and the other is relief afterwards. Prevention in advance is good for both sides, so how to establish relevant systems to prevent the conflict between domain names and trademarks is what the author will discuss below: 1. Domain name registration policy As mentioned above, the current domain name registration is open, and whether it can prevent domain name disputes has a lot to do with the registration policy. Domain name registration policies are divided into openness, semi-restriction and restriction [6]. Opening does not restrict the qualifications of domain name registration applicants, and does not review the right to apply for domain name registration. The principle of acceptance is "first application"; The semi-restricted type does not restrict domestic people, but requires non-domestic domain name registration applicants to provide evidence to prove their rights to the selected domain name. The restrictive type implements a strict restrictive policy, and only domestic people are allowed to register domain names for names that they have rights to, and they are strictly examined. At present, the open registration policy is widely adopted in the world, but this registration policy itself is not conducive to preventing domain name disputes. The international common practice is to regulate the responsibility of domain name applicants through the format contract of domain name registration. 2. Strengthen the cooperation between the domain name registration management unit and the national trademark management department. On the one hand, we will pre-reserve the domain names corresponding to well-known trademarks and trade names for a certain period of time. On the other hand, we will publicize the registered trademark rights holders through the State Trademark Office, or inform the rights holders that they can apply for domain names with the relevant letters and numbers of the trademark to carry out online business activities. The main purpose of this is to let the trademark owner exercise his rights in time. Sometimes the obligee can recover his domain name through litigation, but it takes a lot of manpower and material resources, resulting in waste, so it is necessary to take prior coordination measures. 3. Establish the registration and retrieval system of the domain name registration management unit. At present, the application for domain name registration is relatively loose, and the domain name registration management unit is not responsible for inquiring whether the user's domain name conflicts with the registered trademark from the trademark management department of the State Administration for Industry and Commerce, which leads to frequent disputes. The author thinks that the domain name registration management unit should conduct relevant review and exclude domain name registration applications that should not be allowed to register through retrieval. 4. The lifetime system of domain names should be abolished According to China's "Measures for the Administration of Internet Domain Names" and its detailed rules, as long as the domain name registration is successful, as long as the registrant does not give up or the domain name is not revoked, the domain name will remain valid. Such a rule will lead to hoarding of domain names. If the renewal system is implemented, the occurrence of cybersquatting can be reduced. The prevention mechanism is mainly discussed above, but disputes can't exist. How to resolve conflicts after disputes appear is also very important in balancing the interests of domain names and trademarks. 1. Non-judicial means: mainly refers to the dispute resolution mechanism stipulated in a series of relevant laws and regulations, such as the Measures for the Administration of Internet Domain Names in China and the Measures for the Resolution of Domain Names Disputes in China Internet Information Center. These laws and regulations stipulate the procedures for non-judicial settlement of domain name disputes and the establishment of relevant institutions: after receiving the complaint from the complainant, if the complaint does not meet the relevant formal requirements of the settlement method and procedural rules, the complainant shall modify the complaint within five days from the date of service of the relevant modification notice from the center. If the complaint meets the requirements, the Center shall deliver a copy of the complaint to the respondent within three working days after receiving the procedural fee paid by the complainant according to the procedural rules, and the respondent shall submit a defense within 20 working days from the date of delivery of the copy of the complaint. The complainant and the respondent shall choose an expert or a collegial panel of three people to hear the complaint and defense. The domain name dispute resolution center shall set up an expert group in time according to the procedures. The expert group shall make a ruling within 14 days from the date of its establishment, and the center shall deliver the ruling to both parties, the corresponding domain name registration management agencies and domain name registration service agencies within 3 working days after receiving the ruling, and stipulate relevant execution procedures. 2. Judicial channels: On the basis of advocating various methods to solve disputes, judicial procedures are inevitable. When dealing with such disputes, the court can decide which party should use the domain name, and the transfer of the domain name can be recognized under certain conditions. As for the form of responsibility, some researchers believe that China's information industry and e-commerce are in the development stage, and the number and amount of online transactions are not large. For infringement, it should mainly be the form of responsibility to stop infringement, such as stopping use and revocation.

Legal objectivity:

trademark act

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Trademarks approved for registration by the Trademark Office are registered trademarks, including commodity trademarks, service trademarks, collective trademarks and certification trademarks;

Trademark registrants enjoy the exclusive right to use trademarks and are protected by law. The term "collective trademark" as mentioned in this Law refers to a sign registered in the name of a group, association or other organization for members of the organization to use in business activities, so as to show the membership of users in the organization. The term "certification trademark" as mentioned in this Law refers to a mark controlled by an organization with the ability to supervise goods or services and used by units or individuals outside the organization to prove the origin, raw materials, manufacturing methods, quality or other specific qualities of the goods or services. Special matters concerning the registration and management of collective trademarks and certification trademarks shall be stipulated by the administrative department for industry and commerce of the State Council.