香港硕士论文-香港域名保护的缺陷与改革协议-Domain name protection in Hong Kong: f

Title: Domain name protection in Hong Kong: flaws and proposals for reform
Personal Author: Chan, Grace
Journal Name: International Journal of Law & Information Technology
香港硕士论文Source: International Journal of Law & Information Technology v. 13 no. 2 (Summer 2005) p. 206-42
Publication Year: 2005
Subject(s): Domain names/Hong Kong; Trademark registration/Hong Kong
Physical Description: Bibliographic footnotes
ISSN: 0967-0769
DOI: 10.1093/ijlit/eai009
Language of Document: English
Document Type: Feature Article
Update Code: 20050916
Date Entered: 20050819
Database: Legal
Accession Number: 200519604876003
Persistent URL: Click to copy the HTML full text article link

AUTHOR: GRACE CHAN
TITLE: Domain name protection in Hong Kong: flaws and proposals for reform
SOURCE: International Journal of Law & Information Technology 13 no2 206-42 Summ 2005
COPYRIGHT: The magazine publisher is the copyright holder of this article and it is reproduced with permission. Further reproduction of this article in violation of the copyright is prohibited. To contact the publisher: http://www.oup.co.uk

ABSTRACT
In Hong Kong, domain name disputes are governed by a policy that is heavily influenced by that of the US-based Corporation for Assigned Names and Numbers ('ICANN'), which is designed to protect interests of some trademark owners at the expense of some domain name registrants. The root cause of Hong Kong's adherence to US Domain Name Dispute Resolution Policy lies in the physical architecture of the domain name system itself, which is US-controlled. Hong Kong may improve protection for domain name registrants by amending the Hong Kong Domain Name Dispute Resolution Policy to make it more registrant-friendly than it currently is. In the longer run, however, Hong Kong's ultimate power to decide on its own domain name dispute policy may involve moving away from the superior authority of the A root. A concurrent and less drastic step to improve the situation would be to clarify the ability of domain name registrants to register their domain names under trademark law.

1. Methodology
    Although there is a significant volume of research materials on the flaws of ICANN's uniform domain name dispute resolution policy which affects generic top level domain names, little study has been done on domain name protection in Hong Kong. Major factors affecting Hong Kong domain name protection are the Hong Kong domain name dispute resolution policy; the domain name system architecture that has led to Hong Kong's adoption of US's complainant-friendly dispute resolution policy; and trademark legislation that can enhance domain name protection by allowing for domain names to be registered under Hong Kong trademark law. The paper uses the conceptual layered principle to divide the Internet into the content, application, operational and physical layers, link and organise discussion on the major three factors affecting Hong Kong domain name protection. On the operational layer, the Hong Kong domain name dispute resolution policy and its application in practice are assessed through a study of criticisms on corresponding provisions in ICANN's uniform domain name dispute resolution policy, upon which Hong Kong's policy is modelled. Literature written by various authoritative academics helps identify existing problems with the domain name architecture and that Hong Kong has come to adopt a complainant-friendly stance under US influence. On the content layer, study of the Trademarks Ordinance (Chapter 559), online trademark registry searches and reference to overseas guidance on domain name registrability indicate a need at the Internet content layer for Hong Kong to offer statutory' clarity and other guidance on domain name registrability.

2. Introduction
    Existing Hong Kong domain name dispute resolution policy does not adequately protect the interests of registrants. This paper will consider how, at the operational layer of the Internet, the US-influenced domain name policy influences the level of protection for .hk country code top level domain name registrants and suggests possible alternatives that Hong Kong and governments around the world may take to facilitate greater independence of domain name governance. This paper consists of eight chapters.
    Chapter 1. introduces the conceptual layered model, and specifies the elements within some of the layers relevant to Hong Kong domain name protection. The four main conceptual layers of the Internet are:
    * The Content Layer (symbols and images communicated to end-users)
    * The Application Layer (programs and protocols that use the Internet)
    * The Operational Layer (Standards and Protocols, server operation)
    * The Physical Layer (physical wire and cable transferring bits)
    Chapter 2 outlines the domain name system; the management and assignment of domain names, and the policy governing domain name disputes.
    Chapter 3 is a critical description of ICANN's and Hong Kong's dispute resolution policies that are unfair to registrants.
    Chapter 4 highlights the pro-trademark stance that WIPO exerts as an advisory force behind ICANN.
    Chapter 5 proposes solutions on how the Hong Kong domain name dispute resolution policy should be amended to give more fairness to .hk domain name registrants.
    Chapter 6 explains that the domain name system architecture limits Hong Kong's control over its country code domain names and its ability to improve the dispute resolution policy; and highlights features of the architecture that increase the likelihood of dispute.
    Chapter 7 explores possible means for Hong Kong to take control of its country code top level domain names so that she can implement fairer policies for registrants.
    Chapter 8 suggests that Hong Kong legislation should formalise the registrability of domain names under trademark law and proposes the introduction of guidelines on the registrability of domain names.

Chapter I
    The domain name system enables communication of information between end-users across the Internet. As a communications system, it can be conceptually divided into different layers. This paper will explore regulatory elements within the relevant layers to determine how well Hong Kong domain name owners are protected.

1.1 A layered model
    Professor Lawrence Lessig presents the 'code thesis'(FN1) that 'the architecture of the Internet has profound implications for its legal regulation.(FN2) This means that it is important to study the architecture of the domain name system because it impacts upon how the Internet and in particular domain names including .hk ccTLDs are regulated. Moreover, the 'best regulations attack a problem at a given layer with a regulation at that layer.'(FN3) For instance, regulations may be put in place at different levels of the domain name architecture concerning intellectual property law and ultimately which entity or country has authority over domain names and how they are regulated.
    Professor Yochai Brenkler identifies that a communications system consists of three general layers upon which regulatory choices are made, namely 'the physical infrastructure, logical infrastructure, and content layers.'(FN4) The physical infrastructure layer at the bottom of a communications system consists of physical wires or computers linking Internet users; the content layer at the top consists of elements transmitted across the wires that are communicated to Internet users on computer screens; in the middle there is the logical layer, made up of Internet protocols that make the Internet run.(FN5)
    Lessig refers to the middle logical layer as the 'code layer'(FN6) because it consists of software code that 'makes the hardware run.'(FN7) Craig McTaggart further distinguishes two types of code; namely the edge code which is closer to Internet users because it consists of applications, and the core code which consists predominantly of standards and protocols with which users have little interaction, such as centralized resources like the root server system(FN8) and IP addresses and domain names.(FN9) McTaggart subdivides the logical or code layer into the 'application layer' which consists of the edge code, and the 'operational layer' which accommodates the core code.(FN10) The application layer consists of applications including web servers and web server software. The operational layer is made up of Internet standards and protocols, and centralized resources such as the root server system from which domain names derive, and IP addresses.(FN11) The Internet therefore has four general layers: the content, application, operational and physical layers.

1.2 Domain name protection at different layers
    An assessment of and proposals for improving existing protection for .hk domain name registrants demand an examination of the elements in various layers of the 'conceptual model of Internet architecture' affecting country code top level domains, including .hk domain names.(FN12) This paper targets three specific parts of two layers of the Internet layer system.
    At the operational layer of the Internet, ICANN's domain name dispute resolution policy has a direct influence over that of Hong Kong, hence affecting the extent to which Hong Kong domain name owners are protected. This layer consists of domain names and IP addresses.(FN13) US policy governing the domain name system therefore relates to the operational layer for the purpose of this paper. This paper identifies that due to existing US control over the domain name system at this layer, Hong Kong's policy making function for its top level country code domain is controlled by a US-backed domain name assignment entity.
    Another feature at the operational layer is the architecture of the Internet that leads to Hong Kong's adherence to ICANN's domain name policy. This paper will examine how the actual domain name architecture has led to Hong Kong's adherence to US domain name policies which favour trademark owners more than domain name registrants, and hence impacts the level of .hk domain name protection. The domain name system is headed by a US-controlled root server (as we will see in Chapter 2).(FN14) Root servers form part of the operational layer.
    At the content layer, this paper will examine how Hong Kong domain names protection can be enhanced if the Intellectual Property Department of Hong Kong clarifies the criteria for registering domain names as trademarks. The content layer is one that the Internet 'user sees.'(FN15) A domain name is communicated to Internet users on screen to direct them to the goods and service sold by a website represented by that domain name. The protection of a Hong Kong domain name through trademark registration is arguably an element primarily relating to the content layer.

1.3 Role of the layered approach
    The layered approach is one way of organising legal and policy issues, and many do not support it.(FN16) Legal and policy issues can also be classified by specific legal areas such as commercial or intellectual property law or by issues.(FN17) However, this paper adopts the layered approach as a means of 'conceptually organizing Internet legal and policy issues.'(FN18) It illustrates that at the operational layer, Hong Kong domain name protection is firstly controlled by the architectural design of the domain name system and existing domain name dispute policy governing top level domain names; and secondly by local intellectual property laws at the content layer. The approach demonstrates how control of elements at one layer may affect that at another.(FN19)

Chapter 2
    There are two elements at the operational layer of the Internet: the domain name system, and the policy that governs it. Knowledge of both is important to the understanding of disputes related to the domain name system.

2.1 The Domain Name System ('DNS')
    Domain names are semantically recognisable identifiers used by computers to locate websites and e-mail addresses on the Internet. The DNS, an international hierarchy of databases, maps a domain name to a 32-bit Internet protocol ('IP') number that addresses Internet communications such as e-mails and web traffic. At present, domain names for public Internet resources derive largely from two structured hierarchies, namely a visible, registration side of the DNS relating to naming conventions and allocation constraints for domain names: and a less detectable, name resolution side of the DNS that governs how domain names are mapped into IP numbers which enable communication across the Internet.(FN20)
    The registration side of the DNS hierarchy ensures the uniqueness of each domain name by requiring each domain name to be managed by a single registrant rather than be associated with a single IP number.(FN21) The resolution side of the DNS consists of an interdependent hierarchical database, at the top of which exists a single data file containing a list of machines, or root servers that maintain master lists of registrations of names and numbers in each top level domain ('TLD'). This is known as the 'legacy root'.(FN22) All 13 machines receive information and updates from a 'super root' server named 'SRS,' operated under contract from the US Department of Commerce and ICANN.(FN23) Ten out of thirteen of these machines are maintained in the US. To be accessible on the Internet, an IP number and corresponding domain name must generally be accepted by the legacy root. Although it is possible to maintain a TLD that is not on the legacy root's list, such alternative TLDs could only be accessed by computers or Internet service providers ('ISPs') using a domain name server that includes, or can locate this additional data. Hence, alternative TLDs that are not in the legacy root cannot be accessed by most Internet users who lack the technical knowledge to re-set obscure elements of their browser settings in order to locate alternative TLDs. For instance, early last year New.net Inc., an alternate domain name registry started selling TLDs based on twenty extensions that do not derive from the legacy root and hence are not approved by ICANN, including '.family' and '.xxx.' Most Internet users cannot find them because the domain name servers of most Internet service providers only recognize ICANN-sanctioned TLDs. Although New.net got around this problem by registering fourth level domain names using sanctioned TLDs, users would still need special browsers that attaches the 'new.net' extension to addresses registered with New.net(FN24)
    A domain name is resolved through the sending of queries to a group of hierarchically linked databases, starting from the bottom of the hierarchy at the name server selected by the Internet user or ISP. If the data does not exist in this name server, the query would make its way further up the hierarchy until it can be resolved. The legacy root file instructs domain name resolving programs where to find second-level domain names registered for the TLD to be resolved, the authoritative master copy of which can be found at the registry of the particular TLD in question.(FN25)
    The legacy root consists of generic top-level domain names ('gTLDs') such as .com, .net, and .org domains; country code top level domain names ('ccTLDs') such as .hk, and .uk; and one four lettered TLD (.arpa). It is operated by Network Solutions Inc. ('NSI'), under a contract with the US Department of Commerce ('DoC'). The DoC has power to decide on the listing of content in the root file.(FN26) US control over the root and the DNS will be further explained in Chapter 51. The following sections will look at the entity that assigns and manages gTLDs and the policy that the entity adopts to resolve disputes over gTLDs; and the body that manages ccTLDs and its relationship with gTLD-assigning entity.

2.2 ICANN and UDRP
    ICANN, a private, non-profit organisation, manages and co-ordinates the DNS as a contractual agent of the DoC under an agreement with the NSI(FN27) and a Memorandum of Understanding with the DoC.(FN28) ICANN allocates IP address space, assigns identifier for gTLDs and ccTLD domains and sets policy for domain name dispute resolution. ICANN delegates responsibility for adoption of policies and procedures for assigning domain names to registrars which agree to operate the ICANN Uniformed Domain Name Dispute Resolution Policy ('UDRP'),(FN29) part of which is formed by the Rules for Uniformed Domain Name Dispute Resolution Policy ('UDRP Rules'). All ICANN accredited registrars administering gTLDs must comply with the UDRP, which has the effect of obliging domain name applicants to agree that any disputes will be adjudicated by an approved dispute resolution service provider.(FN30)
    Under the UDRP, gTLD registrars that have received a complaint from a trademark owner alleging trademark infringement by a holder of the corresponding domain name will take no action until they receive instructions from the domain-name holder or a court order, arbitrator, or other neutral decision-maker deciding the parties' dispute. This however, is subject to an exception where the domain name holder is shown to have been registered in abusive attempts to profit from another's trademark (e.g. Cyber-squatting).(FN31) In such cases, the complainant (usually the trademark owner) can invoke a special administrative procedure to resolve the dispute, to be decided by neutral persons chosen from panels established for that purpose. Parties to such disputes may turn to the courts for resolving their dispute or to contest the outcome of the procedure.(FN32)

2.3 ccTLDs
    ccTLDs consist of two or more letters that correspond to the two-lettered abbreviations for countries (such as .hk for Hong Kong). The Internet Assigned Numbers Authority ('LANA') established ccTLDs, and delegated management responsibility for ccTLDs to designated country managers who operated them in accordance with local policies 'adapted to best meet the economic, cultural, and linguistic circumstances' of the country in question.(FN33) The Hong Kong Internet Registration Corporation, for instance manages the .hk ccTLD as we will see in Chapter 3. ICANN, upon its formation assumed IANA's functions and jointly issued with LANA a policy document named 'Internet Document Name System Structure and Delegation (ccTLD Administration and Delegation)' ('ICP-1'),(FN34) the implications of which will be explored in Chapter 51.

2.4 Relationship between ICAANN and ccTLD managers
    There is a gradual move towards formalizing the relationship between ICANN and ccTLD managers to address the circumstances when the designated manager of a ccTLD should be changed, ccTLD relationship to ICANN and LANA and the respective responsibilities, ICANN funding for taking care of global stability and ICANN's support of ccTLD manager's duty to serve in the interest of the local Internet community whilst taking into account of global Internet users and policies.(FN35) For instance, ICANN has already entered into sponsorship agreements with the governments and ccTLD managers of Australia (.au)(FN36), Kenya (.ke)(FN37), Japan (.jp)(FN38), Sudan (.sd)(FN39), Taiwan (.tw)(FN40), Uzbekistan (.uz)(FN41); and memorandum of understanding with Laos (.la)(FN42), Afghanistan (.af)(FN43), Burundi (.bi)(FN44) and Malawi (.mw)(FN45).

Chapter 3
    This chapter examines how the current domain name hierarchy threatens domain name registrants' interests and how Hong Kong's domain name dispute resolution policy, which mirrors ICANN's UDNRP, fails to operate in favour of registrants.

3.1 HKDNR
    The Hong Kong Internet Registration Corporation ('HKIRC'), a private, non-profit making corporation, through its operational wholly-owned subsidiary Hong Kong Domain Name Registration Company Limited ('HKDNR') registers and assigns all .hk ccTLDs.(FN46) ICANN's 'government-created power over gTLD registries(FN47)' leads to a power over the HKDNR as a gTLD registrar. On 22 April 2003 a memorandum of understanding was signed between the HKIRC and the Hong Kong Government, setting out the Government's endorsement of HKIRC's application to ICANN for ICANN's re-delegation to administer the .hk ccTLD registration.(FN48)
    Despite the gradual move towards formalisation of ICANN's relationship with ccTLD managers, neither the Hong Kong Government nor the HKIRC has entered into any formal agreement with ICANN to date.(FN49) However, it is stated on the HKDNR's website that one of HKIRC's objectives is 'to liaise with local and international bodies on issues relating to the development and administration of domain name systems and Internet Protocol addresses.'(FN50) International bodies relating to DNS and IP addresses referred to by HKDNR can almost certainly be taken to include ICANN.
    There is much indication that Hong Kong, as a ccTLD delegee, adheres to ICANN's policies in domain name dispute resolution. Although current ICANN resolutions 'will not directly affect the registration procedures and dispute resolution policy in Hong Kong' due to their non-applicability to second-level domains under the .hk domain, the Government expects that the 'various initiatives of ICANN [in domain name dispute resolution]... may eventually drive Hong Kong to make changes in the relevant areas.'(FN51) As we will see in the next section, Hong Kong has adopted a domain name dispute resolution policy containing clauses that are mostly identical to ICANN's UDRP which is evidence of ICANN's influence over HKDNR.
    The similarity between the UDRP and Hong Kong's domain name dispute resolution policy is a result of the link between the arbitration body for Hong Kong domain names and ICANN. Disputes involving .hk domain names are solely handled by the Hong Kong International Arbitration Centre ('HKIAC'), which forms part of the Asian Domain Name Dispute Resolution Centre.(FN52) The Asian Domain Name Dispute Resolution Centre is one of the four domain name dispute resolution providers approved by ICANN to carry out dispute resolution services regarding gTLDs under the UDRP.

3.2 Hong Kong Domain Name Dispute Resolution Policy
    HKDNR requires registrants to comply with the Domain Name Registration Agreement for .hk Domain Names ('Registration Agreement').(FN53) The Domain Name Dispute Resolution Policy Rules of Procedure(FN54) ('Rules') and the HKDNR Domain Name Dispute Resolution Policy ('HKDNDP')(FN55) form part of the Registration Agreement. The HKDNP sets out the terms and procedures for .hk domain name disputes between the registrant and a third party. Since the HKIAC is and has been, appointed by HKDNR as the sole provider of dispute resolution services for .hk domain names,(FN56) .hk domain name disputes are also governed by the HKIAC Supplemental Rules to the HKDNR Domain Name Dispute Resolution Policy ('HEIAC Rules').(FN57)
    By way of background, the most common form of domain name dispute is that between the domain name registrant, and the owner of a trademark that is similar or identical to a domain name held by the registrant. Increasing global usage of the Internet means that businesses want to use their domain name as an identifier of their origin. This is why a lot of domain names are identical to registered trademarks.(FN58) Many trademark owners want to claim domain names from registrants whose domain names are identical or similar to their trademarks. The UDRP complaint mechanism seeks to prevent domain name registrants from cybersquatting.(FN59)
    Like the UDRP,(FN60) the HKDNDP subjects to mandatory arbitration proceedings cases where a registrant's domain name is identical or confusingly similar to a complaint's trademark;(FN61) where the registrant has no rights or legitimate interests in respect of the domain name;(FN62) and where the registrant's domain name has been registered and is used in bad faith.(FN63)

3.3 UDRP and HKDNDP
    There are eight major UDRP features that are adopted in the HKDNDP. Under the UDRP registrants are required not to infringe third party rights in the use of the domain name;(FN64) the complainant can choose to have the dispute decided by a single-member or three-member arbitration panel;(FN65) it is the complainant (usually a trademark holder)(FN66) that initiates proceedings for the violation of its rights by a domain name registration;(FN67) the date of filing of the complaint to when the decision is given is approximately 40-45 days or less;(FN68) if a complainant trademark owner loses in the arbitration proceedings it can still go to court;(FN69) the arbitration provider publishes any decisions that the complainant filed a complaint in bad faith;(FN70) respondents have 20 days to respond to a complaint;(FN71) registrants cannot tarnish a trademark;(FN72) and cybersquatting is specifically targeted.(FN73)
    The HKDNDP mirrors the UDRP. Under the HKDNDP, registrants warrant against infringing third party rights in the use of the domain name;(FN74) the complainant can choose between a single or three-member panel;(FN75) the complainant initiates a complaint:(FN76) the arbitration proceedings take less than 60 days(FN77) and cost no more than HK$18,000;(FN78) the unsuccessful complainant may go to court;(FN79) registrants have 20 calendar days to file a response to the complaint;(FN80) registrants are prohibited from tarnishing a trademark;(FN81) cybersquatting is specifically targeted through limitation of the scope of arbitration to 'bad faith' registration.'(FN82)

3.4 Positive impact of the UDRP on the HKDNDP
    The UDRP appears to positively impact the HKDNDP in that it offers trademark owners and domain name registrants a fast and relatively inexpensive procedure for resolving domain name disputes.(FN83) There is even support for expanding the applicability of the UDRP to all ccTLDs in order to achieve more policy consistency and enhance global protection against cybersquatting.(FN84) It is often believed that overall, the UDRP 'serves as an effective remedy against abusive registrations while preventing overreaching by trademark holders' and hence 'embodies a critical trade-off between Internet stakeholders,' notably trademark owners and domain name registrants.(FN85)

3.5 Drawbacks of UDRP influence
    Rights of .hk domain name holders are in many ways undermined by the adoption of a dispute resolution policy so similar to the UDRP. The HKDNDP mirrors ICANN's UDRP. Like the UDRP, the HKDNDP favours and serves the interests of trademark owners wanting to claim domain names from registrants, rather than domain name registrants.

3.5.1 Prioritising third party rights
    Like the UDRP,(FN86) HKDNDP's requirement for prospective registrants to warrant that they will not infringe or violate any third party rights in respect of,(FN87) and intends to use, the domain name in question(FN88) benefits any trademark owner who believes that a domain name registration has infringed his trademark rights.(FN89)

3.5.2 Resolution provider bias
    Also like the UDRP,(FN90) the HKDNDP favours trademark holders in that it is the trademark-owning complainant that initiates complaints.(FN91) In respect of gTLDs, under the UDRP if the complainant elects a one-person panel, the arbitrator will be from the dispute resolution provider's list. Dispute resolution providers may have financial incentive to select 'complainant-friendly' panelists because complainants initiate the proceedings. Studies show that panelist selection by the World Intellectual Property Organisation, and the National Arbitration Forum (two major ICANN-accredited providers of UDRP arbitration) appears to be 'heavily biased toward ensuring that a majority of cases are steered toward complainant-friendly panelist.'(FN92) As of 18 February 2002, WIPO and NAF's share of UDRP case load were 59.2% and 34.5% respectively,(FN93) making them the biggest providers of UDRP dispute resolution. Complainants win 83% of the single-panel cases with XVIPO, and 86% with NAF, which are very high percentages compared to 64% with eResolutions (another dispute resolution provider) which, not surprisingly only took up 5.6% of the market share.(FN94) It appears that providers that produce more complainant-win decisions are more popular with complainants, which is evidence of forum shopping.
    The problem of forum shopping by complainants is less applicable in Hong Kong. The HKIAC, a non-profit making company is for the time the sole dispute resolution provider for .hk domain names, so unlike the case for gTLDs, the HKIAC not yet has competing dispute resolution providers. Despite being economically self-sufficient, it is heavily funded by but independent of both the government and the business community.(FN95) Funding businesses which may include trademark owning corporations could arguably make HKIAC more complainant-friendly. The HKIAC has been the sole dispute resolution provider since 1 June 2001.(FN96) Of the thirteen complaints initiated with the HKIAC since that date, six were successful.(FN97) and only two were rejected,(FN98) with the remainder either withdrawn or pending.(FN99) The relatively high complainant-success rate could indicate 'complainant-friendliness'. The position may worsen if HKDNR appoints more dispute resolution providers in the future because the potential problem of forum shopping by complainants will become relevant to .hk domains. However, it may be argued that for the time being .hk registrants are afforded slightly more fairness than their gTLD counterparts. Since the HKDNR has chosen to appoint the HKIAC to arbitrate disputes over the domain names that the HKDNR itself registers, it would presumably not be in the HKDNR's interest to want the HKIAC to cause the elimination or removal of its registrations without good reasons. Equally, since many of HKDNR's customer-registrants are also trademark holders who may initiate complaints with the HKIAC, alienating them would not be in HKDNR's interest either. HKDNR's need to meet the needs of both trade-mark owning complainants and registrants would arguably make its incentives more balanced.(FN100)

3.5.3 Single or three-member panels
    Like the UDRP(FN101), HKDNDP also favours trademark owners in that it is the trademark owning complainant that chooses whether to have the dispute resolved by a single-member or a three-member arbitration panel.(FN102) Complainants are less likely to want a three-member panel, where they have less chance of success than with a single-member panel as supported by statistics on WIPO, NAF and eResolutions.(FN103) Complainants' preference for a single-member panel is reflected in Hong Kong domain name dispute resolution. Single-member panelists were appointed in seven of the eight cases decided by HKIAC since June 2001.(FN104)
    With a three-person panel, both the complainant and the respondent get to give a list of choices for one arbitrator, and the dispute resolution provider picks the third panelist.(FN105) However, to do this the respondent of an .hk domain name dispute, like its counterpart in a gTLD dispute under the UDRP,(FN106) will have to pay one-half of the fees for a three-person panel.(FN107) This fee is currently HKD16, 000,(FN108) half of which may be a drop in the ocean for the complainant trademark owner which tends to be a large corporation, but may be quite significant for a domain name registrant who tends to be an individual with less means.

3.5.4 Quick and cheap proceedings
    The HKDNDP gives trademark owners an inexpensive and quick means to claim domain names from registrants. The arbitration proceedings normally take less than 60 days from the filing of complaint at the Hong Kong International Arbitration Centre to notification of the arbitration panel's decision to the parties.(FN109) An arbitration procedure does not cost more than HK$18,000.(FN110)

3.5.5 Availability of litigation
    Even if a complainant trademark owner loses in the arbitration proceedings pursuant to the HKDNDP, he may still go to court. Large corporations that own trademarks tend to have the financial resources to pursue court proceedings at a convenient jurisdiction. It would be unfair to expect a registrant to have the same level of time and resources to deal with litigation let alone in a court or jurisdiction of the complainant's choice with which he is not familiar.

3.5.6 Reverse hijacking
    The HKDNDP, like the UDRP fails to show support for registrants by failing to punish reverse hijackers adequately.(FN111) As with the UDRP,(FN112) under the HKDNDP the arbitration provider of a dispute publishes any decision that finds a complainant to have brought a complaint in bad faith.(FN113) This is not serious enough a punishment to deter reverse-hijacking,(FN114) although it is difficult to introduce a more serious sanction without giving arbitrators more power than just transferring or canceling a domain name.(FN115) Further, under the UDRP panelists appear reluctant to make a finding of reverse-hijacking in the first place. Studies show that although the respondent success rate is high in cases where the complainants have tried to use the UDRP to get property rights over generic terms or grab important names from registrants, panelists are generally reluctant to exercise the option of making reverse domain name hijacking findings or branding the complainant a 'reverse domain name hijacker.'(FN116) Moreover, panelists at WIPO and the NAF tend to be more inclined to discern bad faith on the part of the registrants than complainants.(FN117)

3.5.7 Time for response
    Like the UDRP Rules, the Rules do not require the complainant to give actual notice of arbitration proceedings to the respondents. The respondent of a .hk domain name dispute has only 20 calendar days from the commencement of arbitration proceedings to respond to the complaint(FN118) under the UDRP.(FN119) Just like the UDRP Rules,(FN120) if a respondent registrant does not respond within this time period, the arbitration panel will, subject to exceptional circumstances, make a decision based upon the complainant's evidence.(FN121) The Rules are unfair to .hk registrants because there is no express provision covering exceptional circumstances such as where the registrant has not been able to respond because he has been outside Hong Kong or other similar circumstances.

3.5.8 Free speech
    In addition, the HKDNR may suppress registrants' right to free speech. Like the UDRP,(FN122) the HKDNDP prohibits tarnishment of a trademark by a respondent-registrant because a respondent of a non-commercial site(FN123) who is not known by the domain name(FN124) can only be deemed to have a legitimate interest in the domain name if he makes a 'legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.'(FN125) This means that a registrant can not make use of the exception of fair use if he tarnishes a trademark in a domain name, and this restricts the content of his website.(FN126) For instance, large corporations in the US have filed complaints against respondent-registrants who incorporated the name of their business in their domain name, adding the word 'sucks.'(FN127) There may therefore be a potential use of the HKDNDP as a means to suppress critics, counter to Article 27 of the Hong Kong Basic Law.(FN128) Also, HKDNDP could be creating more rights for trademark owners than Hong Kong trademark law, under which a registrant will only infringe a trademark if he uses it 'in the course of trade or business.'(FN129) In this respect, the HKDNDP gives more rights to trademark owners than the Trademarks Ordinance.(FN130) There have been UDRP cases where the domain name was transferred to the trademark owner because the use of a company name as part of the domain name to run a criticism site is not deemed a legitimate fair use, for example, quirknissan.com.(FN131)

3.5.9 Emphasis on Cybersquatting
    Like their UDRP counterparts(FN132), HKDNDP arbitration panels could produce inconsistent decisions. The HKDNDP limits its scope to 'bad faith' registration of .hk domain names(FN133) to specifically target cybersquatting. However, cybersquatting must be distinguished from domain name speculation which is the situation where the registrant does not target a specific trademark owner.(FN134) In the case of domain name speculation, the registrant merely stockpiles registration of desirable domain names, such as speculating that a certain trademark owner's business may change hands for a high record price.(FN135) The HKDNDP does not explicitly address this distinction and hence it is uncertain whether arbitration panels would find bad faith in cases of pure domain name speculation, which in itself is not wrong.
    To sum up, HKDNR has adopted a largely similar dispute resolution policy to ICANN's UDRP, which 'presents a clear policy choice to sacrifice the interests of (some) domain name registrants in favor of (some) trademark registrants...'(FN136) It is merely a cheaper way for trademark owners to hijack domain names from registrants.(FN137) Moreover, like the UDRP, HKDNR fails to effectively block reverse hijackers and is simply a cheap policy for trademark owners to hijack domain names that happen to be similar or identical to their trademarks, and suppresses .hk domain name registrant's freedom to criticise large corporations that own trademarks. It also fails to protect respondent registrants with purely speculative registrations.

Chapter 4
    HKDNR has adopted much of ICANN's UDRP which clearly sacrifices some domain name holders' rights in favour of some trademark owners' rights. ICANN's policies are in turn influenced by the recommendations of the World Intellectual Property Organisation ('WIPO').(FN138) Like ICANN's current dispute resolution procedure, WIPO favours large corporate interests. As reported earlier, the Hong Kong Government has indicated that she is likely to follow many of ICANN's initiatives. It is therefore important to acknowledge the dispute resolution recommendation of advisory forces behind ICANN such as WIPO's proposals for reforming ICANN's dispute resolution policy and procedure for gTLDs.

4.1 Famous and Well-known marks
    The Final Report of the WIPO Domain Name Process(FN139) ('Final Report') recommends that famous and well-known marks should be protected pursuant to the Paris Convention of the Protection of Industrial Property through a mechanism whereby the 'owner of a famous or well-known mark could obtain an exclusion prohibiting any third party from registering the mark as a domain name'(FN140) that is the same as or misleadingly similar to a famous or well-known mark.(FN141) Since WIPO has recommended it should be the dispute decision maker that allocates the ultimate responsibility for panel and administration fees taking into account all factors of the dispute and outcome,(FN142) it would be unfair for the registrant to bear the costs of the proceedings just because his domain name happens to be misleadingly similar (whatever this may mean) to a mark that the relevant authority considers famous or well-known. It may be true that there are cases where registrants intentionally register domain names similar to famous marks (such as Abercrombie & Fitch, the established retailer of casual clothing) so that the public would be diverted to access hyperlinks to other websites through their infringing website.(FN143) However, sometimes a registrant might simply have registered a name that he has made bona fide use of prior to registration and has no intention of trading on the goodwill of the famous or well-known name to which the domain name is misleadingly similar, like in the case of Gordon Sumner, p/k/a Sting v Michael Urvan.(FN144)

4.2 Evidentiary presumption
    WIPO also introduces a system of an 'evidentiary presumption.'(FN145) whereby the exclusion holder of a famous or well-known mark in a self-initiated dispute resolution procedure has to demonstrate that the domain name in question was 'identical or misleadingly similar to the' mark that is the subject of the exclusion, and that the registrants use the domain name in question in a manner that is likely to injure the interests of the mark owner.'(FN146) The burden of proof would then shift to the registrant, who will have to prove that he uses the domain name in good faith, and prove why the registration should not be cancelled. If the registrant fails to do this, the domain name would be cancelled.(FN147) This would be 'invidious'(FN148) towards the registrant because the concept of evidentiary presumption presumes bad faith in a dispute resolution case where similarity is an issue.
    WIPO's recommendation on exclusion and evidentiary presumption give 'potentially limitless protection'(FN149) to famous and well-known marks at the cost of registrants' interests. Besides, international conventions such as the Paris Convention, as WIPO itself notes, are directed at protecting these marks against registration of other infringing marks.(FN150) Domain names are not the same as trade or service marks. In any event, the Final Report's provisions in respect of famous or well-known marks are contrary to WIPO's statement that 'the goal of this WIPO Process is not to create new rights of intellectual property, nor to accord greater protection to intellectual property in cyberspace than that which exists elsewhere.'(FN151) WIPO seeks to protect a category of special names without having produced a definitive list of famous or well known marks, nor criteria(FN152) for determining what is famous and well-known(FN153)

Chapter 5
    The last two chapters have demonstrated the potential that ICANN's dispute resolution policy and WIPO's recommendations are biased towards large corporations that own trademarks and famous marks, which tend to be complainants of domain name disputes. In the Hong Kong context, although the existing HKDNDP is modelled on the UDRP, the Government has indicated that ICANN's dispute resolution policy does not directly affect the registration procedures and dispute resolution policy in Hong Kong.(FN154) This suggests that Hong Kong is not officially obliged to rigidly follow the UDRP, and hence could proactively reform the HKDNDP to bring more fairness for .hk registrants instead of adopting complainant-friendly provisions of UDRP, or WIPO as and when they are incorporated in the UDRP.

5.1 Panelist and Provider Bias
    HKDNR needs to address the potential problem of 'complainant-friendly' resolution providers or panelists to create a fairer dispute resolution platform. The trend makes mandatory domain name arbitration under the HKDNDP less reliable than legal proceedings, in which judges' income is not affected by the number of cases heard, unlike arbitration service providers whose income is affected by complainants' lawyers' opinion of the likelihood of the complainant's success.
    As noted in Chapter 3, dispute resolution providers may have economic incentives to be 'complaint-friendly.' The HKDNDP should allow parties in a domain name dispute to transfer cases from dispute resolution service providers that are potentially biased. An example of a potentially biased dispute resolution provider in favour of the complainant might be someone who is a member of an organization that sponsors the dispute resolution service provider.(FN155) At present, the panels do not have the authority to recuse a provider, nor can a dispute resolution provider be forced to recuse itself under such circumstances.(FN156)
    HKDNR should allow the complainant and registrant to agree on a dispute resolution service provider and where they fail to agree allow for the provider to be chosen randomly. Each party could provide a list of preferred providers in order of priority. The dispute resolution service provider will be less likely to side with the complainant if both sides have equal say.(FN157)
    Another option would be to appoint a third party to decide on a dispute resolution service provider, such as the HKDNR which is more likely to respect interests of both the complainant and the registrant. The HKDNR is familiar with procedures, fees and possible biases of competing dispute resolution service providers.(FN158) If anything, HKDNR might even be registrant-friendly because of the obvious incentive to serve its customers, who are .hk domain name registrants.
    In respect of arbitration panelists, the HKDNDP needs a mechanism that would enable the parties to challenge the appointment of an arbitration panelist if they believe that the panelist may be biased or has a conflict of interest. (FN159) Currently, under the HKIAC Rules, complainants and registrants may challenge a panelist's impartiality and independence and the HKIAC at its discretion may replace the panelist in question with another panelist from its list of panelists. Moreover, the HKDNDP places a duty on panelists to disclose any circumstances that cause doubt to their impartiality and independence before and during proceedings.(FN160) To further ensure impartiality and independence, the HKDNR could produce some written standards dealing with conflict of interests issues.
    Three-member panels can be made compulsory for all contested HKDNDP complaints.(FN161) This would ensure better quality decisions because panelists would be required to justify their reasoning to one another. The difference between single and three-member panel decisions as demonstrated in Chapter 3 represents a shift to greater fairness between complainants and registrants.(FN162) The complainant should be the party to cover the full cost of the three-member panel. Under the current HKDNDP, the respondent, like his counterpart in a gTLD dispute under the UDRP,(FN163) will have to pay one-half of the fees for a three-person panel.(FN164) This may be a huge financial burden on registrants. To be fair to complainants, there should be an option for complainants to switch to a single-member panel in the event that the respondent registrant does not give a response.
    As argued both in Chapter 3 and earlier in this Chapter, the HKDNR has balanced incentives in respect of dispute resolution over the domain names that it registers. A new HKDNR accreditation scheme could be set up to accredit panelists instead of dispute resolution providers.(FN165)

5.2 Reverse Hijacking
    To address the problem of reverse hijacking, HKDNR should deter prospective complainants from such an act by requiring the complainant to pay a surety bond or equivalent kind of sum at the commencement of proceedings, which would be awarded to the registrant in the event that the panel makes a finding of reverse hijacking.(FN166) The surety bond will act as a penalty for the reverse hijacking complainant as well as compensation for the time spent and any costs incurred by the .hk domain name registrant.(FN167) Since a complainant who is found by the arbitration panel to have brought a complaint in bad faith get off so lightly (with a mere panel declaration in the panel decision that the complainant was brought in bad faith and hence constitute an abuse of arbitration proceeding process),(FN168) there is nothing to stop such complainant from dropping a case when he receives a counterclaim for reverse hijacking from the registrant who has just paid for a three-person panel, and bring another claim again at a later stage. Bringing a claim would subject the registrant in this case to more non-refundable arbitration fees.(FN169) Even if the complainant in this scenario does not make further complaints, withdrawal denies the registrant a chance to make a claim for reverse hijacking and to claim back his legal fees. Therefore, the HKDNDP should provide for fee refund to registrants in the event that the complainant withdraws from a claim upon receipt of the registrant's counterclaim to put an end to this loophole.
    HKDRP should protect registrants from another possible reverse hijacking-related scenario, where a trademark owner tricks the registrant into doing something that can be used as evidence of bad faith.(FN170) HKDRP should amend the HKDNDP to the effect that a complainant that produces solicited offers to sell a domain name would also have to disclose any correspondence that triggered the offer, and expressly stress in the policy that such correspondence is relevant for determining bad faith.(FN171)

5.3 Time limits
    Registrants of .hk domain names have too little time to respond to a complaint. As explained in Chapter 3, the respondent-registrant has only 20 calendar days to respond to a complaint.(FN172) Moreover, the clock starts ticking from the commencement of proceedings(FN173) Since it would be unfair for the arbitration panel to make a decision where the registrant fails to respond because he may be out of Hong Kong, the HKDNDP should make the time period at least three or four times longer, starting from the moment the complaint is received by the registrant.(FN174)

5.4 Free speech and speculative legislation
    Domain names are merely 'semantically meaningful pointers to information,' and enable critics to label their criticism 'in the most intuitive way.'(FN175) Although they can indicate a trademark, domain names should not 'automatically be equated with trademarks' because 'such an equation poses a threat to free expression on the Internet' and could prevent critics from labeling their websites in an effective way, hence making it harder for potential audiences to locate it.(FN176) The HKDNDP should expressly provide that non-commercial domain names containing the word 'sucks' for instance, or other disparaging terms after a trademark should not be presumed as confusingly similar.(FN177)
    The HKDNDP should also explicitly distinguish cybersquatting and domain name speculation by the registrant, and give examples of what would be considered speculative registration, such as the date of registration to be considered along side the date upon which a trademark becomes such that the registrant can take advantage of it.(FN178)

5.5 Overseas ccTLD example
    The HKDNDP is modelled on the UDRP. Hong Kong could consider adopting the approach of the Canadian Domain Name Registration Authority ('CIRA') in respect of revising the HKDNDP. Like the HKDNR, CIRA has adopted a .ca ccTLD dispute resolution policy ('CDRP')(FN179) modelled on the UDRP. CIRA has attempted to address some of the criticisms of UDRP-influenced policy highlighted above through making revisions to the CDRP.
    To afford more fairness to registrants, CIRA Domain Name Dispute Resolution Policy Rules ('CDRP Rules')(FN180) became first in the world(FN181) modelled on the UDRP to mandate that all contested domain name complaints are heard by a three-member panel,(FN182) and that the complainant has the option to switch to a single-member panel if the respondent fails to respond to the complaint.(FN183) The panelists are drawn from lists provided by both parties and if the parties cannot agree, the dispute resolution provider will select the panelists.(FN184) To protect freedom of expression on the Internet, the CDRP has extended the definition of legitimate use of a domain name to use 'in good faith in association with a non-commercial activity including... criticism, review or news reporting.'(FN185) Obviously, the above revision, while useful may not entirely eliminate bias in the system because much of the bias rests with the arbitrators rather than the rules because of possible economic incentives to rule in favour of trademark holders who will more likely use their services in the future than respondent-registrants.(FN186)
    It is apparent that HKDNR must create fairness for domain name registrants in the dispute resolution process, by addressing the aforementioned issues and revise the HKDNDP provisions adopted from the UDRPR It would be useful for the HKDNR to consider approaches of overseas ccTLD registries like CIRA in respect of revising the UDRP-modelled HKDNDP.

Chapter 6
    The previous chapters have illustrated that on the operational layer of the Internet, there is much room for improving .hk domain name registrants' rights. Hong Kong's dispute resolution policy is largely based on that of the US-influenced ICANN, even though in theory there is no obligation for HKDNR to follow ICANN's UDRP. This chapter examines how, also at the operational layer of the Internet, the technical DNS architecture impacts the way all domain names are governed, including the existing .hk domain names policy. The DNS hierarchy described in Chapter 2, along with the control of the legacy root, allows the US to directly or indirectly tie conditions to the use of domain names that would in turn be implemented in the policies of national domain name governing entities outside the US. The UDRP can only be imposed successfully upon certain technical conditions, for instance ICANN has exclusive control of most valuable name spaces and that it can condition access to that space to a set of substantive rules.(FN187) This chapter also highlights that, besides being one-entity controlled, the DNS has other features that make registrants vulnerable to complaints.

6.1 The DNS Architecture
    As explained in Chapter 2, the DNS exists in the form of a hierarchy, with the legacy root server as 'the apex of a tree.'(FN188) The hierarchical architecture makes the allocation and administration of domain names more manageable. Beneath the legacy root are TLDs the management and allocation of which are delegated to different entities. There are two primary types of TLDs,(FN189) namely gTLDs and ccTLDs. The management of ccTLDs is delegated by LANA to country managers, whose ccTLDs are assigned from the country code standard ISO 3166, which is maintained by the ISO 3166 Maintenance Agency.(FN190) The country code manager for the .hk domain is HKDNR. Beneath the TLDs are second level domain names, such as .com.hk and .edu.hk. Beneath second level domain names are third level domain names like .hku.edu.hk. There is a technical need for a single authority above all TLDs to co-ordinate assignment function to ensure unique mapping of domain names to IP addresses.(FN191)

6.2 US policy-making through ICANN

6.2.1 Technical control
    Technology is shaped by the 'cultural and societal structure of those who produce it.' It shapes and limits relationships 'amongst citizens, businesses, and the state'.(FN192) The DNS and the policies that come with it are shaped by US policy in the guise of the UDRP, which in turn affects the extent to which nations make policy rules that benefit ccTLD registrants rather than trademark owners, including Hong Kong.
    It is important first to take note of some of the counter-arguments that suggest ICANN's power is not derivative from the US government. It has been argued that ICANN's policies have the consensus support from the Internet community that led to the formation of ICANN, and that root servers' operators are independent.(FN193) However, as explained in Chapter 2, the DoC which operates the 13 root servers which obtain updates from a DoG-operated 'super-root,' so in this sense the root servers are not entirely independent. Also, as we will see below, under a contract between ICANN and the DoC(FN194) the government has the right to replace ICANN.

6.2.2 Contractual control
    The US government controls the legacy root because it traditionally controlled, created, and funded the DNS as a private service. It also contractually procured the appointment of ICANN as a body responsible for managing and coordinating the DNS through four agreements (1) an agreement between the DoC and NSI/VeriSign, and DoC and ICANN(FN195) (2) a memorandum of understanding between DoC and ICANN(FN196) (3) a Cooperative Research & Development Agreement(FN197) (4) a contract between the DoC and IANA for MANA to oversee the allocation of IP addresses(FN198) (the responsibility of which is now assumed by ICANN).
    The DoC has outsourced the domain name policy making function to ICANN.(FN199) The DoC appears to use ICANN as an agent for implementing policies, including the enforcement of mandatory arbitration procedures that benefit third party trademark holders.(FN200) Appointment of ICANN as a technical coordinator for domain names enables DoC and ICANN to make 'de facto rules that apply to all the United States' and most foreign DNS participants, and that 'frequently benefit the trademark lobby.'(FN201) As seen in the previous chapters, much of the UDRP, upon which the HKDNDP is modelled, favours the complainant trademark holder.

6.2.3 Policy influence
    ICANN's influence over .hk domain name disputes is also strengthened by the fact that ICANN has issued the 'Principles for the Delegation and Administration of Country Code Top Level Domains,' ('Principles')(FN202) as an indication that it has claimed sovereignty over all ccTLDs assigned according to the two-letter codes in the ISO 3166-1 standard, which includes .hk domain names.(FN203) The objective of the Principles is to assist the development of best practice for ccTLD delegation and administration.(FN204) The Principles recommend that 'communication'(FN205) between the Hong Kong Government and the HKDNR should include provisions, including conditions for resolution of dispute that should ensure the interests of registrants as well as third parties including those in other jurisdictions.(FN206) Such third parties resemble local or overseas corporations that own trademark rights. The Principles explicitly mentioned that dispute resolution policies should 'to the greatest extent possible' have due regard for 'internationally recognized intellectual property.'(FN207) The Principles are evidence of the DoC-ruled ICANN's attempt to impose its complainant-friendly stance on registries worldwide. Although the Principles provide merely best practice guidance, they may deter Hong Kong from amending the HKDNDP in favour of registrants if ICANN considers that this would reduce trademark owners' rights too much.(FN208)

6.2.4 Control over ccTLDs
    Another source of ICANN control over ccTLD (that derives from ICANN's control over the legacy root) is that ICANN has the power to create and destroy ccTLDs in the A root,(FN209) including .hk domains. Despite ICANN's attempt to separate its technical operation from domain name policy by deferring to the ISO 3166-1 list, the ICP-1 policy (as explained in Chapter 2) simply refers to the ISO 3166-1 list country code list for delegation matters. This is because IANA cannot assess if the areas covered by the codes are actually 'countries.'(FN210) All of the ccTLDs on the ISO 3166-1 list were created based on the ISO standard, except five, which ICANN itself had created and these are listed on the list of reserved ISO codes,(FN211) which contains codes including .uk and .je for the UK and Jersey areas.
    ICANN may equally destroy a ccTLD. Examples of such destruction are ICANN's removal of the .zr code for Zaire when ISO removed it after the country name changed to the Democratic Republic of Congo; and of .su, the ex-SoNiet Union's code.(FN212) Although these are uncontentious examples of ccTLD codes, ICANN's ability to create and remove ccTLDs can be a potential source of bargaining power for it to impose its contractual terms on other countries.(FN213)

6.2.5 Registrant preference
    ICANN may exercise its bargaining power for delegating Chinese language domain names that end in .com. There would naturally be a significant extent of demand for use of, and registration of Chinese language domain names in Hong Kong, given that the territory is predominantly Chinese speaking. Although the China Internet Network Information Center, the administrator of the PRC's domain name system and its various accredited registrars can be an alternative registration mechanism to the US-ruled ICANN, many Chinese Internet users still have a preference for English language domain names ending in .com rather than .com.cn.(FN214) ICANN can take advantage of this preference, because most Hong Kong residents wishing to register a Chinese language domain name would prefer to register with an ICANN accredited registrar in order to obtain the ICANN DNS TLDs.

6.3 Architectural limitations of the DNS
    The DNS architecture ensures that domain names are unique identifiers and no two identical domain names can co-exist. At the same time, rapid and continuing expansion of the Internet corresponds with an equally fast rate at which domain names are being registered. The technical fact that no two same domain names can be registered under the DNS and the rapid rate of increase in domain name registrations lead to an increasing number of trademark owners wanting to claim domain names that are similar to their trademark but are already owned by domain name registrants. For instance, in the HKIAC decision over 'pps.com.hk',(FN215) the respondent-registrant Post Production Shop Limited registered a domain name that represented his company name. The domain name is also similar to the Complainant's(FN216) registered trademark 'PAYMENT BY PHONE SERVICE' and 'PPS.' There would be far less disputes if it had been technically possible to register the same domain name under a series of sub-divisional classes of goods and services for which it is registered, like in the case of trademark registration where a trademark owner is protected from third party use of its trademark in the same line of goods or services for which the trademark is registered.(FN217)
    Although ICANN maintains that national governments have the authority to manage and establish their own ccTLD policy,(FN218) Hong Kong does not have the sovereignty and control it needs to implement better policies to protect domain names. Any revision and amendment to the HKDNDP, or even the UDRP for that matter may improve registrants' rights but will still not change Hong Kong's adherence to ICANN policies as a result of the DNS architecture. Also, some features of the DNS architecture, such as the non-duplication of a domain name, may be a cause of increasing domain name complaints against registrants. The next chapter will explore how Hong Kong may get to the root of the problem by gaining control of its ccTLD in order to set its own registration requirements to lessen the chance of disputes.

Chapter 7
    The Government of Hong Kong plays a central role in domain name administration and assignment of domain names and IP addresses. For instance, in 1999 the Government was actively involved in identifying a framework that bests suits Hong Kong, taking into account ICANN's initiatives and directions.(FN219) To depart from a position of target for ICANN's direct, indirect, actual or potential policy imposition, the Government needs to take control of the .hk ccTLD.
    There is a potential problem that in doing so, Hong Kong would be claiming a property right to share with ICANN the power to make ccTLD delegations. Any assertion that Hong Kong has an exclusive and privileged relationship with the .hk domain purely because of the corresponding geographic indication of the domain would be a weak ground for claiming such property right.(FN220) On the other hand, Hong Kong could quite simply claim that Hong Kong must have control over .hk domains and supporting technology in order to eliminate 'extraterritorial influence over national policies where such influence is derived from control over the technology underpinning the DNS.'(FN221)
    The current DNS does not allow nations to share in the control of the domain name space that includes ccTLD, because a share in this name space also means control of a sovereign name's underlying architecture nationally.(FN222) As long as the existing DNS hierarchy is in place, Hong Kong to varying extent will be subjected to US-imposed domain name policies. Hong Kong should seize control of its ccTLD to protect .hk domain name registrants from increasing foreign influence that favours trademark owners more than domain name registrants as a whole.

7.1 'Sovereign Domains'
    The Hong Kong Government may take control of ccTLDs by renouncing ICANN and its root server's authority. Although it may be argued that a single entity controlling a single unique root is necessary to maintain a stable, consistent domain name space, there is valid political rational for this move, namely to strive for more freedom to set .hk domain name policies to ensure fair treatment for registrants. To renounce such authority, it would be necessary to establish Hong Kong's own territory ccTLD root. Renouncement can be achieved by making the Hong Kong root voluntary or by mandating Hong Kong ISPs to recognize the Hong Kong root as authoritative in respect of .hk domain names codes. This would renounce ICANN's authority but not the A root.(FN223) The second step would be to require that national TLD not to recognize the legacy root as authoritative in terms of ccTLDs. This means that if an ISP in another country does not recognise a .hk address, it would query with the .hk root recognised with the .hk domain name authority rather than the legacy root system. Under this peer-to-peer system, 'each name server would recognise each ccTLD root servers as authoritative for its domain.'(FN224) This approach helps deal with the problem of US-control over .hk domain names but it must be noted that Internet users may still choose to recognize the authority of other alternative roots like that of New.net Inc. mentioned in Chapter 2.
    The PRC for instance has created its own ccTLD root by setting up the China Internet Network Information Center for .cn domains.(FN225) The other option would be to have an arrangement where Hong Kong stops recognizing the legacy root but may still send any query that is not solved by the local server to the legacy root system to receive an address in the .us domain.(FN226)

7.2 Possible Problems with alternate roots
    Critics have highlighted potential problems with the operation of alternate roots, which the Hong Kong Government should take into account. Internet users need to have computers that are programmed to access the alternative root. Different websites may show up upon the same DNS query issued from different computers depending on the availability of appropriate technology to access specific alternate root domains.(FN227) E-mails from two different computers sent to the same address may be directed to different recipients depending on whether the computers are programmed to locate alternate Internet addresses. These potential problems could be overcome, however, by conducting the appropriate public promotion campaign on the need for Hong Kong to have its own ccTLD root and for Hong Kong Internet users to adopt the relevant technologies to utilize this alternate root. A unique feature of Hong Kong is that its people are far more acceptable to new technology and different brands and products.(FN228)
    Some critics also argue that a single authoritative root is preferable from a business standpoint in that businesses would naturally want to use the domain name lists that most people use.(FN229) Most alternative roots on the Internet so far have been promoted by small enterprises that lack the ability to establish critical mass.(FN230) This position changed when the venture capital-financed New.net Inc. started an alternate root. In any event, governments including Hong Kong presumably have balanced incentives in terms of looking after the interests of the local Internet community as a whole, including those of individual, non-corporate registrants and not just the business sector. It is up to governments to find ways to improve domain name protection for registrants, and setting an alternate .hk root could be one of them.

7.3 Replace ICANN?
    Another solution is to jointly with other non-US countries demand for the DNS to be operated by a more neutral 'International civil society'(FN231) like the International Telecommunications Union ('ITU') which is involved with development of telecommunications issues. The Internet and DNS are telecommunications mechanisms. Advocators of US interests(FN232) have argued that the ITU would be too slow to respond to a fast changing Internet community and interestingly that the ITU may impeach US interest and undermine commercial interests of main players.(FN233) On the other hand, at the World Information Society Summit (WSIS Summit) held in Geneva, China, South Africa, India and Brazil proposed that control of IP addresses and domain names should rest with an international organization.(FN234) In fact, at the ITU two-day workshop on Internet governance in February 2004, China and South Africa called for the creation of an 'intergovernmental body' because issues relating to Internet management are dominated by US interests. Not surprisingly, this idea was vigorously opposed by the US which argued that this could create greater state interference in cyberspace.(FN235) The United Nations Working Group on Internet Governance was formed in June 2004 to address the differences in opinions raised at the Summit.(FN236)

7.4 Streamlining. hk registrations
    As seen in the last chapter, one other problem with the DNS architecture is that there cannot be two of the same domain names. Should the Hong Kong Government wish to continue to have ccTLD subservient to a higher foreign root, it may Wish to address the problem of domain name shortage by requiring that all profit making organizations such as companies to own the second level domain name .com.hk, which will leave more .hk domain names for non-profit making organizations.
    In short, the Hong Kong Government should either 'declare independence' from the A root and a one-entity controlled DNS,(FN237) and set up its own ccTLD or act as a partner to ICANN under the A root. If Hong Kong must remain sub-ordinate to higher control, it should at least consider the means of helping domain name registrants by restricting who can register certain .hk domain names to combat any shortage of domain names, which would help reduce complaints' initiation of domain name disputes. This chapter has also identified some of the potential problems with the operation of an alternate .hk root, which has to be taken into account should the Government wish to consider making changes on the architecture level.

Chapter 8
    At the content layer of the Internet, this paper suggests one further means of enhancing domain name protection in Hong Kong. This will be to formally authorise trademark registrations for domain names, and provide guidelines for doing this.

8.1 Need for domain name protection under trademark law
    Existing flaws of the HKDNDP makes .hk registrants vulnerable to allegations of 'bad faith' and reverse hijacking. Since domain names are invented to perform the technical purpose of giving Internet addresses for computers that are easier to remember than IP addresses, contractual protection of domain names derived from the HKDNDP does not give rise to an intellectual property right (such as trademark right) for registrants to assign(FN238) or reassign,(FN239) license(FN240) or sublicense,(FN241) or co-own(FN242) a trademark registered domain name. An .hk domain name can only be cancelled or transferred under the HKDNDP.
    By registering their domain names as trademarks at the earliest instance, commercial domain name registrants who use their domain names for the purpose of distinguishing the goods and services they sell online will get the benefit of trademark protection to make up for the lack of protection for their domain names under the HKDNDP. Trademark registration gives exclusive right to the registered domain name, which indicates ownership.(FN243) In the light that the existing HKDNDP appears to be more complainant-friendly, trademarking the domain name would help deter potential complainants from questioning the legitimacy of the registrant's use of the name, because the accused registrant himself would have also been the owner of the registered trademark identical to the domain name he had registered with the HKDNR.
    Registrants should note that trademarks have limitations. A trademark is an indicator of origin and its central element is 'the ability of the owner to control its use'(FN244) in connection with or in the course of trade. Protection for exclusive rights in a trademark is limited to the jurisdiction of registration. Registration of an .hk domain name as a trademark therefore would only afford protection in Hong Kong and hence it will be necessary for a registrant of a commercial domain name to make multiple jurisdictions in various countries for the domain name to benefit from trademark protection in these countries.

8.2 Current position
    The Trade Marks Ordinance ('TMO')(FN245) is not explicit on the registrability of domain names. Intellectual Property Department of Hong Kong does not give written guidelines on domain name registrability. However, the TMO does implicitly authorise the trademark registration of domain names that are distinctive. Under the TMO 'any sign' that graphically distinguishes the 'goods or services of one undertaking' from the other is a trade mark,(FN246) and to be registrable a trade mark must be 'distinctive.'(FN247)
    Despite the lack of expressed guidelines on the type of domain names that can be registered, marks such as www.chinastar.com or a word with '.com' or 'com' in the end are found to be registered trade marks.(FN248) There are currently around 50 registered trademarks which are marks followed by '.com' or just 'corn' including WARNER'S.COM, CATALINA.COM, and BODYSLIMMERS.COM. China Star Trademark Limited has registered the mark 'China Star corn www.chinastar.com.' The records of these registered trademarks all contain a condition/limitation/disclaimer saying that Registration of this trademark shall have no right to the exclusive use of the words like 'www' or geographical terms (like China) and '.com.'(FN249)
    It appears that HK has already adopted a similar approach to the UK by having a general policy of not allowing exclusion of certain words. Hong Kong can help commercial domain name registrants in the trademarking of their domain names by explicitly making domain names registrable under the Trademarks Ordinance and providing guidelines on what is a registrable domain name.

8.3 Overseas guidance/ 
    The Hong Kong Intellectual Property Department should devise a set of guidelines on the treatment of domain names for trademark registration. The UK Trademarks Registry does just this. Signs such as 'http://', 'www.', 'co,' and 'gov' are not viewed in the UK as distinctive in character for the purpose of trademarks registration.(FN250) For instance, for domain names with the word 'net' to be registrable as trademarks, they must be reflected in combination with another word that indicates a performance characteristic like 'shopnet', functions such as 'netcontroller' or subjects such as 'weathernet' because otherwise the word 'net' alone is too easily interchangeable with the word 'network'.
    Similarly, the DoC issued the Examination Guide No. 2-99 on 29 September 1999 dealing with 'Marks Composed, in whole or in part, of domain names'. ('Guide')(FN251) The Guide requires that to be registrable, a domain name must be able to function as a source identifier.(FN252) A domain name that only consists of a TLD(FN253) like '.com' cannot be registered as a US trademark, because it does not function as a mark. Marks consisting only of a surname(FN254) and a TLD(FN255) or merely a descriptive term will not be registrable in the US. Likewise, domain names consisting only of generic terms for an applicant's goods or services in question cannot be a registered.(FN256) A domain name which is a mere geographical description will be refused.(FN257) When assessing whether a domain name would be confused with another registered or pending mark, the US examiner generally accord little importance to the TLD part of the domain name. Also, marks or domain names that spell out the phonetic equivalent of a TLD such as 'dotcom' will be treated in the same way as '.com.'(FN258)
    In Australia, the Trademarks Manual of Practice and Procedure states that application for trademark registration of domain names will be examined in the same way as all other trademarks.(FN259) Well-known geographical names, surnames, two-letter mark, or 'laudatory expressions' such as 'bestprice' will not be registrable.
    There is criticism of the concept of asserting intellectual property rights in second level domains and not TLDs i.e. '.com' and '.net.' It has been argued that the reasoning behind this concept is simply that since the DNS only provides a limited number of TLDs which are 'highly generic categories,'(FN260) TLDs cannot be registered due to their generic and indistinctive nature. If TLDs were distributed on a first-come first-served basis, and if there are more of them, there will be more claims for intellectual property or other property rights over the TLDs.(FN261) The reason for existing avoidance of property rights in TLDs is political because any such right would produce firmer legal rights 'vis-à-vis' the authoritative root.(FN262)

8.4 Guidelines for Hong Kong
    Hong Kong should follow the approach in the UK, US and Australia in producing a set of written guidelines for determining the registrability of domain names. The Guidelines should indicate what the overall treatment of domain names is, such as an approach of considering their registrability in the same manner as for ordinary marks. The Guidelines should also explain that marks like www that lack distinctiveness will be refused registration.
    The proposed guidelines should indicate that domain names composed solely of generic words like 'net' will not be registrable as a trademark if they are not combined with an action word like 'shop' to form 'shop-net' or a function word like 'controller' to form 'netcontroller'. Applications, however, should be examined on a case by case basis because words that describe actions or functions may be too generic.
    A domain name should indicate the goods and services sold. Also, a domain name consisting of only a surname, a geographical name or praising words like 'bestprice' for a website that provides business services or the word 'e-print' for website offering printing services should be not registrable due to their lack of inherent ability to distinguish. One way to determining whether such domain names are registrable would be to consider whether ordinary customers think that that they function as a mark.(FN263) Domain names that spell out a TLD like 'dotcom' should be treated no differently from '.com.'

Conclusion
    There is no question that the current HIKDNDP favours complainants at the expense of Hong Kong domain name registrants. This paper has explored three ways to redress the problem.
    In the short term, Hong Kong needs to make the UDRP-modelled HKDNDP fairer to registrants. Clarifying the laws and regulations on trademarking domain names may be another option. In addition to these two moderate options, in the long term, it may be necessary for Hong Kong renounce the authority of the A-root, which will enable Hong Kong to take control of .hk ccTLD and make changes to its dispute resolution policy more freely. This, however, is a drastic move as it requires much technological and policy preparations, because computers require the right programmes to access alternate root addresses.
ADDED MATERIAL
    I would like to thank my supervisor Alana Maurusbat, at the Department of Law, the University of Hong Kong for guiding me to a deeper understanding of domain name issues during the writing of this dissertation.
    I will also give a very special thanks to Professor Gregory Hagen at the University of Calgary for his invaluable comments on my work.

Footnotes
1 Lessig, Code and other Laws of Cyberspace (Basic Books 1999)
2 An. Gahtan Domain Name Dispute Update (29 October 2001) online: http://www.gahtan.com/alan/articles/200110%20Domain%20Name%20Dispute%20Update.htm
3 L.B. Solum and M. Chung, The Layers Principle: Internet Architecture and the Law. U San Diego Public Law Research Paper No. 55 (June 2003)
4 Y. Brenkler, From Consumers to Users: Shifting the Deeper Structures of Regulation. Federal Communications Law Journal 52 at 561, 562-61 (2000)
5 See Lessig, supra note 2
6 See Lessig, supra note 1
7 See Lessig, supra note 2
8 This is a system of 13 globally distributed file servers that contain databases forming a master list of all top-level domain names, which will be further explained in Chapter 2
9 C. MeTaggart, A layered Approach to Internet Legal Analysis, 48 McGill Law Journal 571, at 580-581 (December 2003)
10 Id.
11 Id.
12 See McTaggart, supra note 9
13 See McTaggart, supra note 9
14 The root server system is a centralized resource that performs centralized functions forming part of the operational layer and therefore relates to the operation layer
15 See, McTaggart, supra note 9
16 G. Hagen, Personal e-mail correspondence (2004)
17 See McTaggart, supra note 9
18 See McTaggart, supra note 9
19 See McTaggart, supra note 9. For instance, the architectural design of the domain name system has made Hong Kong adhere to US-backed domain name dispute resolution policies, although Hong Kong may unilaterally enhance its intellectual property laws to better protect its domain names.
20 A. M. Froomkin Wrong turn in Cyberspace: Using ICANN to Route around the APA and the Constitution 50 Duke L.J. 17(2000)
21 Id. For instance, a registrant could associate a domain name with several different IP numbers in the case where a busy website may need several servers, each with its own IP number that direct all requests to the same domain name. Without this registration side of the DNS architecture, if more than one registrant manages one domain name, Internet users typing in that domain name may be playing a 'roulette game with unpredictable results,' or need to go through some kind of process in order to be routed to the right locations.
22 See Froomkin, supra note 20

25 See Froomkin, supra note 20

30 UDRP, paragraph 4
31 UDRP, paragraph 4 (a)
32 UDRP, paragraph 4 (k)
33 ICANN ICANN Montevideo Meeting Topic: Update on ccTLD Agreements (20 September 2001) online:topic.htm.
34 a statement of policies relating to ccTLDs. The policy document highlights the importance of local government policies as a major consideration for LANA in any discussions on ccTLD delegation. ICANN Document ICP--1: Internet Domain Name System Structure and Delegation (ccTLD Administration and Delegation) (May 1999) online: http://www.icann.org/icp/icp-l.htm

46 i.e. .hk, .com.lik, .org.hk, edu.hk, .gov.hk, .indv.hk, .net.hk
47 See Froomkin, supra note 20
48 The Government of Hong Kong SAR New Corporation for '.hk' domain name administration (Press Release 422 April 2003)
49 P. Verhoef, ICANN Vice President, Policy Development Support and e-mail re-confirmation by A. R. Inné, ICANN Policy Analyst/Liaison Telephone

58 P. Gunning Trademarks and Domain Names (Paper presented to NSW Young Lawyers 17 April 2002)
59 Cybersquatting is the registration of domain names that are identical or similar to trademarks for wrongful purposes, such as to create an opportunity for sale of such domain names to trademark owners or to increase website visits by having a domain name that Internet users identify with famous trademarks.
60 UDRP, clause 4(a) (i), (ii), and (iii)
61 HKDNDP, clause 4(a) (i)
62 HKDNDP, clause 4(a) (ii)
63 HKDNDP, clause 4(a) (iii)
64 UDRP, clause 2(b)
65 UDRP Rules clause 3(b) (iv)
66 M. Mueller Rough Justice -- An Analysis of ICANN's Uniform Dispute Resolution Policy Syracuse University School of Information Studies online: http://dcc.syr.edu/miscarticles/roughjustice.pdf
67 UDRP, clause 4 (a)
68 R. Keyt Domain Name Dasputes -- ICANN's Uniform Domain Name Dispute Resolution Policy Keyt Law (1 May 2001) online: http://www.keytlaw.com/urls/udrp.htm
69 UDRP, clause 4 (k)
70 UDRP Rules 16(b)
71 UDRP Rules, clause 5(a)
72 UDRP, clause 4 (c) (iii)
73 UDRP, clause 4 (a) (iii)
74 HKDNDP, clause 2(b)
75 Rules, clause 3(b) (iv)
76 HKDNDP, clause 4(a)
77 http://dn.hkiac.org/en_dn_faq.html
78 http://dn.hkiac.org/en_dispute_schedule.html
79 Rules, clause 16.2
80 Rules, clause 5 (a)
81 HKDNDP, clause 4(c) (ii) and (iii)
82 HKDNDP, clause 4(a) (iii)
83 L.M. Sharrock The Future of Domain Name Dispute Resolution: Crafting Practical International Legal Solutions from within the UDRP Framework 51 Duke Law Journal 817 (2001)
84 F. Williams The Americas, UN Body Urges Action on Domains (Financial Times London 22 February 2001)
85 See Mueller. supra note 66
86 UDRP, clause 2(b)
87 HKDNDP, clause 2(b)
88 HKDNDP, clause 2 (c)
89 See Froomkin, supra note 20
90 UDRP clause 4 (a)
91 HKDNDP 4(a)
92 M. Geist Fair.com? An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP 27 Brooklyn journal of International Law 903 (2002)
93 M. Geist Fundamentally Fair.com? An Update on Bias Allegations and the ICANN UDRP online
94 Id

96 HKIAC online;
97 HKIAC Statistics case nos: DN-0300011, DN-0200006, DN-0200005, 0207-0003, 0107-0002, 0106-0001 online:
98 HKIAC Statistics case nos: DN-0300009, DN-0300008 online:
99 HKIAC Statistics pending case nos: DN-0400013, DHK-0400001; withdrawn case nos: DN-0400012, DN-0300010, DN-0300007 online:
100 See Mueller, supra note 66
101 UDRP Rule, 3(b)(iv)
102 Rules 3(b)(iv)
103 With three-member panels, complainant win percentages drop to 62% with WIPO, and 49% with the NAF. Interestingly, in the only three-member panel decided case in Hong Kong, the complainant was unsuccessful. HKIAC statistics  case no: DN-0300008, ps.com.hk

105 Rules, clause 6(e)
106 UDRP Rules, clause 5(c)
107 Rules, clause 5(c)

110 HKIAC Schedule of Fees onli
111 Reverse hijacking is the situation where a trademark owner seeking to claim a registrant's domain name uses the legal system, including arbitration to challenge the registrant's bona fide registration of a domain name that is similar or identical to its trademark.
112 UDRP Rules 16(b)
113 Rules, clause 16(b)
114 K, Blackman The Uniform Domain Name Dispute Resolution Policy: A Cheaper Way to Hijack Domain Names and Suppress Critics 15 Harvard journal of Law and Technology 211 (2001)
115 UDRP, clause 4(b)
116 See Mueller, supra note 66
117 Id.
118 Rules, clause 5(a)
119 UDRP Rules, clause 5(a)
120 UDRP Rules, clause 5(e)
121 Rules, 5 (e)
122 UDRP, Clause 4(c) (iii)
123 HKDNDP, clause 4(c)(iii)
124 HKDNDP, clause 4(c) (ii)
125 HKDNDP, clause 4(c) (iii)
126 See Blackman, supra note 114
127 Wal-Mart for instance has filed many complaints against domain names that tarnish its business name under the UDRP. See D. Streitfield Maldng Bad Names for Themselves Washington Post (September 8, 2000)
128 Basic Law of HKSAR online:The Basic Law states that 'Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.'
129 Trademarks Ordinance (Chapter 559), sections 18(1), (2), (3) and (4)
130 Chapter 559

132 UDRP, clause 4(a) (iii)
133 HKDNDP, clause 4(a) (iii)
134 See Sharrock, supra note 83
135 Krishna Tax Views: Market for Domain Names is Getting Hotter (Law Weekly 4 February 2001)
136 See Froomkin, supra note 20
137 See Blackman, supra note 114
138 a mechanism that promotes global intellectual property use and protection
139 WIPO The Management of Internet Names and Addresses: Intellectual Property Issues (30 April 1999) online:

141 According to WIPO, a mark may be famous or well-known if it has a set of characteristics including but not limited to having a degree of recognition of the mark in the relevant sector of the public, a significant length, extent and geographic area of use and a significantly high value associated to it. Final Report, chapter 4, paragraph 284(b) (1), (2) and (6)
142 Final Report, chapter 3, paragraph 227
143 A & F Trademark, Inc., Abercrombie & Fitch Stores, Inc., Abercrombie & Fitch Trading Co., Inc. v. Party Night, Ina online:
144 Gordon Sumner, p/k/a Sting v Michael Urvan [2000] GENDND 732 (20 July 2000) this concerns 'sting.com' where the panel denied the complaint's request that the domain name be transferred or cancelled. Online:
145 Final Report, chapter 4, paragraph 289
146 Final Report, chapter 4, paragraph 289
147 Final Report, chapter 4, paragraph 291
148 A. M. Froomkin A Commentary on WIPO's The Management of Internet Names and Addresses: intellectual Property Issues (19 May 1999) online:
149 Id
150 Final Report, chapter 4, paragraph 253
151 The First WIPO process, paragraph 32
152 WIPO RFC 3 'Interim Report of the WIPO Internet Domain Name Process,' paragraph 227 h
153 A. M. Froomkin A Citique of MIPO's RFC 3 (14 March 1999) online:
154 See the Government of Hong Kong S.A.R., supra note 51
155 AFMA, Inc. v. Globemedia, No. D2001 - 0558 (WIPO Aug. 23, 2001) online:
156 A. M. Froomkin ICANN's 'Uniform Dispute Resolution Policy'--Causes and (Partial Cures) 67 Brooklyn Law Review 3 (2002)
157 Id.
158 Id.
159 Conflict of interest may arise, for instance in the event that a panelist belongs to a firm which has taken a position on a disputed issue of law in an arbitration or lawsuit that is pending, there may be a question of whether he should be able to decide a case that raises a similar issue. See Froomkin, supra note 156
160 Rules, clause 7
161 See Geist, supra note 92
162 Id.
163 UDRP Rules,, clause 5(c)
164 Rules, clause 5(c)
165 See Geist, supra note 92
166 See Froomkin, supra note 156
167 See Froormkin, supra note 156
168 Rules, clause 15(e)
169 Glimchcr Univ. Mall v. GNO, Inc., No. FA0107000098010 (NAF Aug. 23, 2001) online
170 For instance, a trademark holder could, in writing, ask a registrant of an .hk domain name he wishes to claim whether and for how much the registrant would be prepared to sell the domain name. Any reply that a registrant gives in writing concerning how much he is willing to sell could be used to indicate cybersquatting.
171 See Froomkin, supra note 88
172 Rules, clause 5 (a)
173 i.e. the time when the complainant sends his complaint and not when the complaint is received by the respondent registrant.
174 See Froomkin, supra note 88
175 See Mueller, supra note 66
176 Id.
177 See Sharrock, supra note 83
178 Id.
179 online:
181 See Geist, supra note 93
182 CDRP Rules clause 6.4
183 CDRP Rules clause 6.5
184 CDRP Rules clause 6.4
185 CDRP clause 3.6(d)
186 A. Gahtan Domain Name Dispute Update (29 October 2001) online: 20Update.htm
187 L. R. Heifer and G. Dinwoodie Designing Non-national systems: The case of the Uniform Domain Dispute Resolution Policy (2001)
188 G. R. Hagen Sovereign Domains and Property Claims International Journal of Law and Information Technology, Vol. 11 No. 1 (2003)
189 There is also an infrastructure TLD, which is the .arp domain for inverse IP address mappings which will not be dealt with in this paper.
190 Online:
191 CANN ICP-3: A Unique, Authoritative Root for the DNS (9 June 2001) Online:
192 S. Bechtold Governance in Namespaces 36 Loyola of Los Angeles Law Review 1239 (Spring 2003)
193 J. Sims and C. Bauerly A Response to Professor Froomkin: Why OCANN Does not violate the APA or the Constitution 6J. Small & Emerging Bus. L. 65 (20021, at 69-70 n.15
194 ICANN Memorandum of Understanding between the DoC and ICANN (25 November 1998) online:and Amendment 1
195 this requires approval of Doc to be sought before NSI/VeriSign can modify the legacy root DoC. ICANN Cooperative Agreement between Doc and NSI, No. NCR-9218742 (23 September 2002) Amendment no. 1, online:
196 this assigns ICANN as manager of the DNS on a trial basis and declaring that the DoC ultimately oversees the DNS, and stating that tie two entities will cooperate Memorandum of Understanding between the DoG and ICANN, or line:
197 Cooperative Research and Development Agreement between as represented by the National Institute of Standards and Technology (NIST) and the National Telecommunications and Information Administration (NTIA), and ICANN, online:
198 Online:
199 See Froomkin, supra note 20
200 The US government soon found it difficult to reconcile this with the interests of trademark lobbyists, to whom the government was heavily beholden. See A. M. Froomkin Form and Substance in Cyberspace Journal of Small and Emerging Business Law (Spring 2002)
201 Id.
202 ICANN (23 February 2000), online:
203
205 includes 'a law, regulation, agreement, document, contract, memorandum of understanding', clause 3.2
206 Principles, clause 9.1.6
207 Id.
208 Id.
209 WordIQ.com 'A root nameserver is a DNS server that answers requests for the root namespace domain, and redirects requests for a particular top-level domain to that TLD's nameservers.' Online: http://www.wordiq.com/definition/Root_nameserver
210 K. Von Arx and G. R. Hagen Sovereign Domains The Richmond Journal of Law and Technology Volume IX, Issue 1 (Fall 2002)
211 Online:
212 See von Arx and Hagen, supra note 210
213 For instance, when the EU first decided to have the new eu domain, ICANN, after approving the delegation of the new ccTLD, declared that its inclusion in the root zone will require a contract between ICANN and the .eu registry.
214 C. Smith Chinese Domain Name Wars' Perkins Coie China Practice Group Resource Center online:
215 HKIAC DN-0300009 online:  This complainant's request for transfer of the domain name was rejected because the registrant had legitimate interest in the domain name at the time of registration. The panel decided to cancel the registration because the website to which the domain name is linked no longer exists and the registrant's company been wounded up.
216 PCCW-HKT Limited and Electronic Payment Services Co. (H.K.) Ltd.
217 Trademarks Ordinance, Chapter 559, section 18
218 DoC Management of Internet Names and Addresses 63 Fed. Reg. 31, 741, para. 11 (1998) Online:

220 Note that the weakness of such ground rests in the context of the existing hierarchical DNS which is controlled by the US through its control over the legacy root and assignment of assignment functions to a single entity, ICANN, M. L. Mueller Ruling the Root -- Internet Governance and the Taming of Cyberspace (The MIT Press 2002)
221 See Hagen, supra note 188
222 See Hagen, supra note 188
223 Id.
224 See Hagen, supra note 188

226 Hagen, supra note 188
227 ICANN ICP-3: A Unique, Authoritative Root for the DNS at paragraph 1(1) (9 July 2001) online: http://www.icann.org/icp/icp-3.htm
228 Mobile Media Forum Posting (4 June 2004) online: http://www.mobiledia.com/forum/topic12936.html
229 C. McTaggart E Pluribus Enum: Unifying International Telecommunications Networks and Governance Research Conference on Information, Comnunication, and the Internet Policy 27 - 29 (1 October 2001)
230 See Mueller, supra note 220

232 which, as we have seen so far are based oil the interests of corporations that own trademarks
233 K. von Arx ICAXN -- Now and Then: ICANN's reform and its Problems 2003 Duke Law & Technology Review. 20007 (11 April 2003)
234 H. Klein Rich, Poor discuss Internet at World Summit (12 December 2003) online:
235 D. Pruzin Internet Governance: ITU Experts see tough task ahead in injecting Global Voice on Net Governance 5 Computer Technology Law Report 106 (5 March)
236 A. Peake Internet Governance and the World Summit on the Information Society (V3SIS) Association for Progressive Communications (June 2004) online:
237 See von Arx, Kim, supra note 233
238 Trademarks Ordinance, Chapter 559, section 29
239 Trademarks Ordinance, Chapter 559, section 34
240 Trademarks Ordinance, Chapter 559, section 29
241 Trademarks Ordinance, Chapter 559, section 34
242 Trademark Ordinance, Chapter 559, section 28
243 C. J. Thomas Registering a Domain Name as Trademark (CanadaOne Magazine February 2000) online:
244 See Gunning, supra note 58
245 Chapter 559
246 TMO, section 3(1)
247 TMO, section 11
248 Y. P. G. Chan Reasons for and circumstances under which domain names should be protected under trade mark law in Hong Kong, and proposals for guidelines on trade mark registration of domain names HKU Intellectual Property in the Information Society -- Research Paper (May 2003)
249 For instance in the registration records for www.chinastar.com, there is a disclaimer specifying that 'Registration of this trademark shall give no right to the exclusive use of the words 'China' and 'corn,' the letters 'www', the top level domain name '.com' and the device of a globe.
252 Since a domain name cannot be registered as a service mark if it does not identify and distinguish the applicant's services. See Re Eilberg 49 USPQ2d 1955 (TTAB 1998)
253 Guide, IID
254 Guide, section III
255 Guide, section IID
256 Guide, section V
257 Guide, section IV
258 Guide, section VI
260 See Mueller, supra note 220
261 Id.
262 Id.
263 Re Standard Oil Co., 275 F.2d 945.125 USPQ227 (C.C.P.A 1960)