INTERNATIONAL BRIEFINGS

VIETNAM that at present all domain name disputes disputes. must be handled by civil or administra- Loophole in .vn domain tive actions (there is no mandatory arbi- One other mechanism that could help name disputes tration required, and no cybersquatters the current jurisdictional issues in the Tilleke & Gibbins would voluntarily agree to arbitration). context of domain name disputes would An administrative action is essentially im- be for Vietnam to require registrants of possible, as the administrative body is re- .vn domain names to agree to a manda- quired to meet face-to-face with the tory arbitration process when they regis- cybersquatter to directly serve a decision ter their domain name. At present, on inspection. arbitration must be agreed to by both Thomas J Treutler and Loc Xuan Le parties. Of course, if the cybersquatter is The current Civil Procedure Code of seeking to extort funds from the rightful ietnam, like many other countries Vietnam, which was adopted in 2015 owner of the domain name, they will not V in the , has an open policy on and entered into effect on July 1 2016, submit to arbitration. the registration and use of its coun- sets out in Article 189.3(d) that one of try code top-level domain name, .vn. Ac- the mandatory factors for a lawsuit to be In the meantime, all disputes must be cordingly, any individual or organisation, accepted is that the complaint must solved through civil or administrative ac- whether domestic or foreign, whether clearly indicate the name and residential tions, or by negotiation with the cyber- present in Vietnam or not, has the right (for an individual) or the address squatter. Moreover, the domain name to register and subsequently use domain of the headquarters (for a legal entity) of registry should be required to collect and names ending in .vn. the defendant, or at least the last residen- provide transparently the names, ad- tial/headquarters address of the individ- dresses and contact information of regis- With such an open policy, disputes over ual or legal entity. The law only affords trants when a dispute arises. domain names will naturally arise, espe- jurisdiction in cases where the individual cially when unrelated applicants register or organisation was in Vietnam and thus names similar to, or containing, the pro- had a home or business address in Viet- tected marks and brands of IP rights nam, or perhaps used to have a home or holders. While it seems that Vietnam has business address in Vietnam. The law as done well at creating a convenient mech- written did not contemplate a situation anism allowing anyone to easily register where the defendant had never lived or and use domain names, it has not yet established an office in Vietnam, but un- been able to establish an adequate mech- dertook actions that had an effect in Viet- anism to resolve the disputes arising nam, such as registering an infringing .vn therefrom. domain name online from overseas.

An interesting challenge arises in cases where the registrant and user of the .vn Creative solutions domain name is located abroad and has never been present in Vietnam. For ex- The lack of jurisdiction could be over- ample, an enterprising cybersquatter in a come if and administrative au- foreign country could register the .vn ver- thorities use some creative approaches sion of an emerging tech company’s .com and flexible readings of the laws on the domain name before the legitimate rights books. holder has turned its attention to secur- ing all possible international permuta- One such reading may include consider- tions of its domain name. ing a domain name as a type of “prop- erty” located in Vietnam, and, thus, jurisdiction being justified. In this regard, Legal obstacles Article. 68.1 of the Law on Information Technology states: “Vietnamese national In issues relating to cyberspace, Viet- domain names ending in ‘.vn’ and their namese law has struggled to keep up with lower-level domain names constitute a rapid changes in technology, and this hin- part of national information resources, which ders the ability of rights holders to seek are of the same utility and must be man- redress in the case of infringement by aged, exploited and used for proper pur- persons or entities located outside of poses and with efficiency.” Thus, it is Vietnam. The first obstacle is that Viet- plausible for courts to view the .vn do- nam’s legal system does not yet contain main name resource as a natural resource clear provisions to deal with situations similar to or oil. Accordingly, there is where a defendant is located outside of no reason why the court of Vietnam Vietnam. In this regard, it must be noted should not have jurisdiction over these

MANAGINGIP.COM YEAR END 2016 1