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JTA BULLETIN, Issue No JTA BULLETIN, Issue no. 7 Cybersquatting through use of a domain name has been written into law as an unfair competition act in a recently passed bill revising part of the Unfair Competition Prevention Law. The revised law was passed in the National Diet on June 22, 2001, promulgated on June 29, 2001 under Law No.81 of 2001 and is slated to come into force by December 28, 2001 at the latest. This issue will deal with “Domain name disputes in Japan”, “Trend of International Application for Registration” and “Protection of Foreign Trademarks against Misappropriation in Japan”. Domain name disputes in Japan ICANN (Internet Corporation for Assigned Names and numbers) has drafted and implemented UDRP (Uniform Domain Names Dispute Resolution Policy) for gTLD since December 1, 1999. In Japan, JPDRP (the JP Domain Name Dispute Resolution Policy) has been drafted by Japan Network Information Center (JPNIC, i.e. the Registry of JP domain names) and has been published since July 19, 2000, in order to establish a rule to solve cybersquatting of the JP domain names. In accordance with the policy of JPDRP, Japanese Intellectual Property Arbitration Center has accepted a request for transfers and cancellations of domain name since October 19, 2000. This center, designated by JPNIC is a solitary dispute-resolution service provider now. As the JPDRP is basically localized from the UDRP, the outline is common to each other, that is, 1. A registrant and a complainant are not bound to a decision made by a panel. Each party can bring a suit within ten days after a decision is made. 2. A decision should be made within fifty-five days after a request is filed. 3. The costs for this dispute resolution are reasonable, that is ¥180,000 for a single panelist, and ¥360,000 for three panelists.. 4. A decision is published through the Internet. As a unique point to JPDRP, any indications, not only trademark, can be grounded to a dispute. Also, ‘bad faith’ may be established, even if a registrant uses the domain name in bad faith but not registered it in bad faith, or vice versa. Under the JPDRP, a complainant for resolution must prove the following three facts (differences from UDRP are emphasized): 1. that the domain name of the registrant is identical or confusingly similar to trademark, service mark, or any other indications in which the complainant has rights or legitimate interests; 2. that the registrant has no right or legitimate interests in relation to the registration of the domain name; and 3. that the domain name of the registrant has been registered or is being used in bad faith. As of June 20, 2001, arbitrations are requested in thirteen cases. Transfer of domain name is decided to the following six cases: 1. “goo.co.jp” 2. “itoyokado.co.jp” 3. “sonybank.co.jp” 4. “icom.ne.jp” 5. “MP3.CO.JP” 6. “SUNKIST.CO.JP” With respect to cases 1, 3 and 5, each registrant brought a suit to a competent court. Following is the summery of these decisions; “goo.co.jp” In the case “goo.co.jp”, the registrant had obtained the domain name before the complainant filed the trademark application “goo” and opened the Internet site. The point at issue is whether the priority of registration of the domain name is considered important or not. As a result, the domain name was decided to be “used in bad faith” since the link and transfer from the site of the domain name to an adult site was set after the complainant opened the site and, therefore, it was decided that the domain name should be transferred to the complainant. “itoyokado.co.jp” The Complainant, Kabushiki Kaisha Ito Yokado is a famous department store in Japan. The Respondent had opened a web site, where it advertised, “Welcome to My Home Page - we are selling the domain name, itoyokado.co.jp”, and simultaneously on the auction of web site ‘Yahoo Japan’, the Respondent proposed to sell the domain name for a bidding price of ¥1,000,000,000. Based on these facts, the Domain name use was considered to be in ‘bad faith’ and a decision to transfer was rendered. “sonybank.co.jp” In the case “sonybank.co.jp”, the registrant requested the court for a preliminary injunction for a request to confirm ownership of the domain name. The point at issue is whether the procedures for decision should be suspended by the injunction. However, the request for the preliminary injunction was made after the present case was informed to the registrant and could be abused as a measure to suspend the procedures for decision. In addition, there was no reason for suspension. As a result, it was decided that the domain name should be transferred to the complainant, without suspending the procedures for decision. This decision cited some other decisions made by the WIPO Arbitration and Mediation Center. “icom.ne.jp” The respondent who received a complaint did not submit a response. According to the allegations and the evidence, which the complainant submitted, the respondent dispersed and is under liquidation. Meanwhile, the complainant is a firm which deals the business of the information processing by the internet. Complainant has the right for a trademark which sound is ’ICOM’ . The name of his firm is also ’ICOM’. The situation that the respondent does not cancel the domain name registration without reason is decided to be the evidence that the domain name has been registered and is being used in bad faith. “MP3.CO.JP” In the case "mp3.co.jp", the complainant, a Delaware corporation in the United States, is a major provider of music distribution service over the Internet. It was found that the registrant, holding a web site under the domain name without providing any related services, appropriated the complainant's good will and, therefore, it was decided that the domain name should be transferred to the complainant. “SUNKIST.CO.JP” It was decided that domain name should be transferred to the complainant, which is the subsidiary in Japan wholly owned by the U.S. corporation who distributes the fruits drink under the trade mark “Sunkist”. The reason is that, if and in case the registrant uses the domain name in his web site, the confusion might happen in the market. The decision further takes up the problem of parallel import matter, that is, whether or not the registrant can import the genuine Sunkist Orange fruits from the United States. However, it was decided that the registrant is not entitled to use the domain name as the registrant’s shop name even for the parallel import. In Japan, registration of general-use JP domain names has been accepted on and after May 7, 2001 and a corporation/person is allowed to register plural domain names. It is expected that disputes on the domain names will increase in the future. Recently, the Bill to revise the Unfair Competition Prevention Law has been approved in the Diet. Under the revised Unfair Competition Prevention Law, the following acts constitutes unfair competition: An act of obtaining or holding a right to use a domain name identical or similar to a specific indication of goods or other matter of other person (meaning names, trade names, trademarks, marks or other indications of goods or a service pertaining to other person’s business) or using such a domain name, for the purpose of making an unfair profit or inflicting injury on other person The situation around domain names has been rapidly changed. Now cybersquatters have to pay big damages for misappropriating famous marks and obtaining domain names without considering such situation. (Sakae MIYANAGA, Patent Attorney, SUZUYE & SUZUYE) Trend of International Applications for Registration Acceptance of international applications under the Madrid Protocol was started on March 14, 2000 in Japan. The number of applications filed through this route is as small as 187 by the end of the last year and 62 for the first three months of this year (see the table indicated below). No. of International Application filed through JPO as the Office of origin Source : Japanese Patent Office Period No. of IA through JPO No. of designated contracting parties 14/3/2000 – 31/12/2000 187 1834 1/1/2001 – 31/3/2001 62 882 The reasons why the number of Madrid Protocol applications have not been increased are considered as follows; (1) the Japanese companies are not familiar with international trademark application and wish to see how things are going under the new application system for a while, (2) most member countries of Madrid Protocol are European countries, and many Asian countries and the United States have not ratified the Protocol yet. However, in the case where a number of countries are designated in a Madrid Protocol application, the cost is significantly reduced as compared to that of filing the national applications in each country. Therefore, it is expected that trademark proprietors, who intend to develop their business globally, would file trademark applications through Madrid Protocol more and more in the future. (Masako NISHIMURA, Patent Attorney, SUZUYE & SUZUYE) Protection of Foreign Trademarks against Misappropriation in Japan In 1999, the Japanese Patent Office revised the examination criteria relating to Section 4 (1) (x), (xi), (xv) and (xix) of the Trademark Law to reinforce the protection of well- known or famous trademarks, so as to reject, in principle, trademark consisting of a combination of another person’s well-known or famous trademark and applicant’s own character or device. Before the revision, a trademark including a well known or famous foreign trademark in its part, filed by a Japanese applicant, could not have been determined to be similar to the well known or famous foreign trademark under the conventional criteria for trademark similarity judgment.
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