International Trade Lawmaking @ Beijing Normal University

ADNDRC provides comprehensive online dispute resolution services for resolving domain name disputes including those arising out of gTLDs, new gTLDs and certain ccTLDs. It has been a dispute resolution service provider accredited by the Internet Corporation for Assigned Names and Numbers (ICANN) since 2002 and provides services under the Uniform Dispute Resolution Policy (UDRP). Based on two decades of experience, the ADNDRC Pratice Development Workshop on April 26-27, 2022 aimed to provide best practice guidelines, tips on addressing procedural issues and the latest case updates relating to complex domain name dispute resolution decisions. It was an opportunity for the ADNDRC’s panelist to engage with the ADNDRC team.

As one of the founding ADNDRC Panelist since 2002, Prof. Xue was invited to join the Workshop and discussed the various practical issues with the colleagues from Asia, Pacific, Europe, North America and Latin America. Prof. Xue especially addressed the uniqueness of the CNDRP in the framework of domain name dispute resolution system.

On April 20, 2016, ICANN  published its “Proposed New Bylaws” for public comments. The Draft New ICANN Bylaws were drafted in order to reflect the changes necessary as a result of the recommendations contained in the proposals by the IANA Stewardship Transition Coordination Group (ICG) and Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) as provided to the ICANN Board on 10 March 2016 and transmitted to NTIA. Taken together, the proposals call for significant governance changes within ICANN, such as the development of new community powers, the incorporation of the reviews currently required under the Affirmation of Commitments, and modifications to key accountability mechanisms such as the Independent Review Process and the Reconsideration Process. ICANN’s Bylaws are its fundamental document and impacts all the stakeholders. The Chinese at-large community that has been actively participating the ICG and CCWG process, does mind the importance of the “constitutional” document of ICANN.

With the support of BNU IIPL, the two ICANN accredited At-Large Structures (ALSes), Chinese Domain Name Users Alliance (CDNUA) and At-Large@China, both of which are the Members of the APRALO, convened the Joint Community Workshop on May 16, 2016, 18:00-20:00 (UTC +8:00) at Law School Auditorium, Room 1922, New Main Building, Beijing Normal University. The Chair of Council of CDNUA, Prof. Hong Xue, the Director of ICANN Beijing Engagement Center, Mr. Song Zheng, and the representative from At-Large@China, Ms. Antonia Chu gave the keynote speeches at the Workshop.

Remote participation and webcasting were available at the Workshop. The Workshop was in English to enable equal participation from all countries.

Prof. Xue gave an Overview of newly added and revised contents of the proposed new Bylaws and analyzed the new power structure and its check-and-balance design. Prof. Xue then narrowed down to the key provisions in the proposed new Bylaws,  especially in Article 1, 4, 6, 16, 17, 18, 19 and relevant Annexes and analyzed the ICANN’s new mission, commitments and  core values, new accountability mechanisms and community powers as well as the series of institutional designs regarding the post-transition IANA function. Prof. Xue pointed out that the empowered community and building justice through IRPs and other accountability mechanisms would better oversee the ICANN’s administration and serve the interest of the global Internet community. Mr. Song and Antonia also shared their views in their own area of expertise and provided their comments on the potential effect of the New Bylaws  on the domain name industry and young Internet generation.

Members of CDNUA and At-Large @ China, from Beijing, London, Paris, Aberdeen and African cities, joined the Workshop and interacted with the speakers. The young members’ made the impressive comments on the ICANN’s social responsibilities. All the comments on the proposed new Byblaws were collected and will be drafted and submitted to ICANN.

“知识产权与技术创新学术研讨会”成功举办

Research Conference on Intellectual Property & Technological Innovation

5月14日，由北京师范大学互联网政策与法律研究中心主办、北龙中网（KNET）、中域国际协办的“知识产权与技术创新学术研讨会”，在北京师范大学后主楼1824法学院学术报告厅成功举行。

来自最高人民法院、中华商标协会 、版权协会 、国家工商总局商标局、国家知识产权局、知识产权研究会、中国互联网络信息中心、国际经济贸易仲裁委员会、北龙中网、政务和公益机构域名注册管理中心、中域国际、中国版权杂志等机构30余位代表，以及来自美利坚大学华盛顿法学院的教授及来自华盛顿的版权技术专家代表参加了此次会议。法学院部分硕士和博士研究生也参加了会议并和与会专家学者进行了积极交流。

上午9点半会议正式开始，会议由北师大互联网政策与法律研究中心主任薛虹教授主持，会议主题为我国“域名系统的知识产权保护新发展”。首先，薛虹教授针对该问题发表了主题演讲，对我国域名系统现行的相关规定及存在问题进行了阐述，并提出了相关解决建议。随后，与会嘉宾对该议题进行了热烈的讨论和磋商，代表各界对该问题提出了看法和建议。与会的代表就网络时代和新通用顶级域名背景下商标权的保护措施和保护体系的构建达成了一致。

下午1点半，会议进行第二阶段。下午会议分为两个议题，第一阶段主要探讨了“开放模式的版权限制与例外”的问题。首先，美利坚大学华盛顿法学院教授发表了主题演演讲，介绍了版权限制和例外的历史发展及美国对该问题的现行法律规定。随后，与会嘉宾对此问题展开讨论。中国国家版权局着重强调了视障人版权权利的保护；版权协会中美司法制度在该问题上的区别进行了讨论，并对我国正在进行第三次修改的《著作权法》与嘉宾进行了意见交流；中国软件联盟代表则呼吁加大对中国软件用户利益的保护、法律制定要有利于产业的发展。第二个议题围绕“国际贸易协议中的知识产权问题”展开。Jonathan Band律师结合自己的工作背景就TPPA与知识产权发表了主题演讲，对国际贸易中互联网经济发展的必要环境因素以及相关版权平行进口等问题进行了阐述。在随后的讨论环节，中国软件联盟就电子商务中的税收问题与Jonathan Band先生进行了交流，版权协会则指出平行进口的合理依据需要进一步的进行探讨。

下午5点，会议圆满结束。此次会议，国内外实务界和学术界专家学者共聚一堂，共同对相关问题进行了深入而有意义的讨论，极大体现了各界对知识产权与技术创新问题的重视，通过研讨势必将促进我国域名系统、国际贸易中知识产权等相关问题研究的进一步发展。

Intellectual Property & Technological Innovation

Organizer: BNU Internet Policy & Law (IIPL)

                                                                                                           May 14, 9:00-17:00

LawSchoolAuditorium, Room 1824, NewMainBuilding, Beijing Normal University

 DAY ONE MAY 14

9:00-9:30 Registration

9:30-12:00 Session One: Intellectual Property Measures in the new gTLD Program

Moderator: Prof. Dr. Hong Xue, Director of BNU IIPL

9:30-10:20 Keynote: Prof. Dr. Hong Xue, Director of BNU IIPL, “Towards a Chinese Community Trademark Clearinghouse”

10:20-11:20 Panel Discussion

Panelists:

(1) State IP Agencies

Justice Luo Dongchuan, Supreme People’s Court

Dr. Zhang Gang, Chinese Trademark Association

Mr. Ma Xiaogang, Chinese Copyright Society

Mr. Yao Zhiwei, Trademark Office of the State Administration of Industry and Commerce

Mr. Liu Lei, State Intellectual Property Office and Chinese Intellectual Property Research Council

(2) Dispute Resolution Provider

Mr. Li Hu, China International Economy and Trade Arbitration Commission

(3) Domain Name Industry

CNNIC

KNET

CONAC

Zhongyu International

11:20-12:00 Q&A

13:30-13:35 Introduction

 13:35-15:30 Session Two: Open Model of Copyright Flexibilities

Moderator: Prof. Dr. Hong Xue, Director of BNU IIPL

13:35-14:05 Keynote: Prof. Peter Jaszi, Washington College of Law, American University (interpretation by Prof. Hong Xue)

14:05-15:05 Panel Discussion

Panelists:

Ms. Yuhua Deng, National Copyright Administration of China

Dr. Dongchuan Luo, Supreme People’s Court of China

Ms. Yan Lin, Beijing Copyright Administration

Mr. Xiaogang Ma, Partner, Haotian Law Firm

Mr. Yan Sun, Partner, Tianyuan Law Firm

BNU Library (invited)

National Library (invited)

15:05-15:30 Q &A

 15:30-15:45 Coffee Break

 15:45-17:10 Session Three: IP Negotiation in “Trans-Pacific Partnership Agreement”

Moderator: Prof. Dr. Hong Xue, Director of BNU IIPL

15:45-16:15 Keynote: Mr. Jonathan Band, Librarian and technology copyright expert from Washington D.C. (interpretation by Prof. Hong Xue)

16:15-16:55 Panel Discussion Topics

Panelists:

Ms. Yuhua Deng, National Copyright Administration of China

Mr. Jianbin Hao, Ministry of Commerce

Ms. Yan Lin, Beijing Copyright Administration

Mr. Xiaogang Ma, Partner, Haotian Law Firm

16:55-17:10 Q &A

17:10-17:20 Closing Remarks

Chinese Community Statement on Trademark Clearinghouse and IDN Variants

Chinese At-large community unaminously agreed at the meeting on April 11, 2013 to submit the following statement to ICANN.

We are very disappointed at the implementation model outlined by “Trademark Clearinghouse: Rights Protection Mechanism Requirements” (hereafter “Requirements’) published on April 6, 2013. Particularly, the model completely overlooks the critical issues of IDN variants with respect to trademark clearinghouse (TMCH) and as a result would seriously impact the public interest in the pertinent user communities.

According to the Requirements, matching domain name labels will be generated for each Trademark Record in accordance with the Trademark Clearinghouse’s domain name matching rules.

The matching rules at the TMCH obviously, however, fail to take into account the trademarks in IDN scripts involving variants, although the variant issues had been raised by the language community experts at the Implementation Assistant Group (IAG).

Variant matching is actually critical for certain language communities. Take Chinese for example, a trademark holder may have registered a word-mark in simplified characters but it is unlikely to register the same word-mark in traditional characters and absolutely unthinkable to register in a mixed-up character setting. In this case, there will only be one trademark record generated in the TMCH. Since the new gTLD registries are obliged to offer sunrise services and trademark claims for the trademarks recorded in the TMCH, only that simplified word-mark will be eligible for sunrise registration and trademark claim services and leaves all other “variants” open for cybersquatting. Ruling out the un-registered word-mark variants would make TMCH completely useless to Chinese trademarks.

What is even more striking is that the Requirements specifically prohibits any registry from implementing variant or bundling rulesand allocating domain names under such variant or bundling rules prior to the conclusion of the Sunrise Period. Such restriction actually excludes any solution for IDN trademarks involving variants to be accommodated in the sunrise period at the TLD level, even though a registry is willing fix the variants through its registration management and at its own costs.

Trademarks have very important function of safeguarding public interests by identifying the source of goods or services. The malfunctioned TMCH design would cause serious public confusion and market chaos. The consequence will be even more serious regarding the trademarks in the fields of banking, insurance and other high-secure businesses. Although at-large community never supports over-extensive trademark measures, ICANN should treat all the trademarks equally, irrespective of the characters of the trademarks, and protect the users in all language communities from confusion equally.

If ICANN  is even willing to protect 50 “derivations” that are DIFFERENT from a trademark per se, why does it refuse to entertain the SAME trademark in variants. This is illogical by all means. On the other hand, all 50 derivations, if applied to a Chinese-character trademark, will all involve variant issues definitely.

At-Large community has made the statement on the Trademark Clearinghouse (TMCH) in September 2012, in which at-large community concerns that the design of TMCH model that uniformly applies to all the gTLD registries, irrespective of their difference, may not provide the tailored services that are really needed by the new gTLD registries. At-large community suggested that “more open and flexible model deserves further exploration.”

The Chinese Internet user community, dating back to October 2011, suggested that IDN-script trademarks involving variants should be taken into account in the TMCH services and ICANN consider adopting community-based solution to address this issue. Many other language communities shared the views of Chinese community.

Unfortunately, ICANN has been deaf to the user community’s feedback and inputs and moves steadily toward the centralized, inflexible and variants-unfriendly TMCH. At-large community, therefore, strongly suggests that ICANN support community-based TLD-bottom-up solution for TMCH implementation and address the IDN variant issue before TMCH provides the services to the new gTLD registries.

IIPL/CDNUA has made substantive contribution to the ICANN policy making, although it is not easy to penetrate the exclusive west-centric club in eco-system of civil society. Although civil society from the South often feels that their voice are bounced by the sound of silence, they are still engaged and talking.

Here are the aggregation of the comments made to a variety of policy issues.

1. New gTLDs: Public Interest Commitments & Dispute Resolution Policy (04/13)

Following to our call on March 11, I made further research on PICs. It seems comment period on this PICs mechanism generally has expired by
February 26 and PICs mechanism has been put into implementation already. I cannot seem any chance to change or improve it, at least in
this round. So it does not make much sense to draft a statement on this.

What I discovered interestingly is that all new gTLD applicants should submit their PICs by March 5.

There are 3 sections in the PICs.

Section 1 states that the new registry operator will only use registrars that have signed the 2013 Registrar Accreditation Agreement (currently under negotiation).

Section 2 is for applicants to indicate which parts of their applications they will incorporate into their registry agreements as binding ommitments.

Section 3 is for applicants to identify additional commitments that are not part of their applications but which the applicants intend to incorporate as binding commitment into their registry agreements.

If an applicant did not submit its PICs, only Section 1 applied to its base agreement by default. To my memory, when RALOs considered those objection statements, some applicants urgently provided their PICs on either Section 2 or both Section 2 and 3 to appeal to RALOs’ support.
But those so-called commitments, if later than March 5, may only be rhetoric to at-large but not “valid” PICs to ICANN.

The current status is ICANN allows the public to comments on the PICs that have already been submitted by March 16. So we could also look at
any specific applications and consider whether or not to comment on their sufficiency and effectiveness of securing public interest.

PIC DRP, which modeled on the PDDRP for trademarks, is a flawed system, in which ICANN struggled between its dual roles as the TLD regulator and at the meantime the contractual party with the TLD operators. Although, understandably, ICANN has no regulatory authority except through the contractual relationship with TLD operators, it is not a fix to mix both rules up. As a contractual party, ICANN should enforce the contract without relying the third party’s complaint. As a regulator, ICANN should be able to judge whether a breach of commitment occurs without outsourcing the assessment to a DRP proceeding, which is both costly and with high bars. We can only hope that the compliance against new gTLDs’ PIC would not be diluted by this new DRP proceedings.

2. New gTLDs: Strawman Solution (04/13)

I had expressed concerns on the trademark “derivations” before, but it is okay that my minority view was not accepted. Now I want to speak
loud against the 50 variations to include “translation” or “transliteration” of any mark although its “abuse” has been recorded in previous proceedings. There would be ridiculous results particularly where these marks are generic terms, like APPLE, SUN or DOVE. If taking into account the same or similar marks registered in different class and country (like Havana Club registered in both US and Cuba by different parties), 50 variations are simply opening a can of worm.  Even if this is merely for sunrise and claims, the chaos would be unimagineable.

3. New gTLDs: IPC/BC Proposal for Additional RPMs (11/13/12)

I noted IPC/BC’s proposal at IGF week and had a sense that they were making substantive demands to expand the RMPs that have been written down. Your message actually confirmed my guessing.

I agree we separate “implementation” from “policy-making” and subject the latter to PDP rather a shortcut at such late stage. But I also
concern that “implementation” can be used to shield substantive decisions on policies, with limited/restricted community involvement
and in very short period of time. Except 5-6 (7 is indeed imcomprehensible), all involves substantive policy choices or even new
policy decisions. To me, it should all be subject to PDP or deserve at least a decent period for cross-community inputs. Had the Brussels one
been announced? And had at-large been able to involve in it?

4. New gTLDs: URS (10/22/12)

As commented at At-Large new GTLD WG meeting in Toronto, we are against the reopening of policy disussion on URS. But now it
seems not only revision to the current policy but complete redrafting could be enabled under the name “implementation”. What do they want to
“draft” in the Drafting Team? Is the team cross-constituency or solely for GNSO? Normally implementation plan is completed by staff. Why is
it referred back to GNSO?

Neither URS nor TMCH covers marks other than trademarks/services (registered, protected by international law or by special domestic
law). They are all purely trademark measures. UDRP only covers trademarks or service marks. New gTLD trademark measures (URS or TMCH) covers: registered marks, marks protected by internaitonal law (such as Parma Ham) or marks protected by special decrees (such as Champagnes).

5. New gTLDs: IGOs/INGOs (09/13)

As I stated before, a broad “IOs” concept is adopted (rather than sticking to exclusive IGOs) and the legal nature of RoC or IOC is clarified.

The Report is on “protection of names and acronyms of certain international organizations including, International Governmental Organizations (IGOs) and Non-Governmental Organizations such as the Red Cross/Red Crescent Movement (RCRC) and the International Olympic Committee (IOC).”

Under FAG, IOC, RC and any other IGOs can file as many objections as possible based on their IGO legal rights against TLD applications
identical or confusingly similar to their name(s). But no DRP mechanism available for IGO names against 2nd-level domain name
registration, and all protection measures at 2nd-level are for trademark, which makes the IGO names’ protection unbalance at top-level and second-level. If a dispute resolution policy could be developed to enable IGOs to complain against abusive registrations at second level, it would be good idea. But I object to changing the current policy at this round and setting out a priorly-reserved name list, let alone merely singling out 2 IGOs for special treatment.

I made a careful study on the legal status of both organizations, and find that both IOC and RC are actually international Non-governmental
organizations (NGOs). So, if there could be a holistic solution (DRP or else), it should cover all International Organizations (IOs), including international NGOs and IGOs. If we stick to the term IGOs, it could be no solution for IOC or RC at all.

6. New gTLDs: closed generic strings (02/13)

I think ICANN is going back to deal with the key issue of whether to interprete or monitor or control the registration policy (who can be the registrants and what can be registered as domain names)  of a new TLD committed in the application. This does not only involve “closed
generic” TLD strings but many other issues, such as protection of IGO/INGO names, management of IDN variants and maintenance of the
“closeness” of the community-based TLDs. Currently, all the application committments are yet to be included in the delegation agreement and thus will not be subject to the “compliance” mechanism.

Should ICANN change this Laissez-faire approach, generally or specific for closed generic TLD strings? I think ICANN should have a holistic view.