论反向域名侵夺——电子商务中域名争议解决程序的滥用

反向域名侵夺是一个与域名抢注同时出现却又远没有引起足够重视的问题,UDRP的制度和CNNIC的规定指出了反向域名侵夺的定义和常见形态,却没有具体给出认定标准。本文主要讨论反向域名侵夺的"恶意"判断方法,指出当前制度设计中的缺陷,建议在立法中加入保证金、暂停受诉等惩罚措施,在实质上防范域名争议解决程序的滥用。     

Domain Name DRS Policies: from the sublime to the ridiculous

Legal context. Cybersquatting emerged as a major problem fortrade mark owners in the latter part of the 1990s. Litigationhas proved a heavy and expensive method of resolving disputes.Over the past decade, various alternative dispute resolutionpolicies have been introduced, most notably the UDRP and mostrecently the .eu ADR Procedure. Key points. The article tracks the development of dispute resolutionand associated sunrise policies from the UDRP, via the NOMINETDRS Policy to the new .eu ADR Procedure. The UDRP was designedto assist nobody but trade mark owners. The NOMINET DRS Policyis wider and covers other rights owners without being specificas to the nature of the relevant rights. The .eu ADR Procedureon the other hand expressly extends to a wide variety of rightsranging from trade mark rights to rights in respect of familynames and condemns speculative as well as abusive registrations.The article draws attention to some of the shortcomings of the.eu ADR Procedure and laments the fact that the European Commission,which is responsible for the introduction of the .eu domain,did not consult more widely with a view to arriving at a sensibleworkable result. The author predicts a shambles both in relationto the .eu sunrise policy and the ADR procedure. Practical significance. The UDRP, the NOMINET DRS, and the .euADR Procedure all contain very similarly worded provisions,which help to conceal the significant differences between them.Practitioners formulating and/or responding to complaints underthese policies and procedures need to be aware of the differences.     

Lord of Your Domain, But Master of None: The Need to Harmonize and Recalibrate the Domain Name Regime of Ownership and Control

The world has seen three waves of property. The first hark backcenturies and relate to ‘real and personal property’such as land and chattel, also known as immovable and movableproperty. The second gained recognition around the nineteenthcentury and relates to propertization of the ‘laboursof the mind’ or ‘intellectual property’. Thethird wave came within a much shorter period and starting togain recognition and it is what is known as ‘virtual property’.The law and policy-makers have had to surmount not only a steeplearning curve but also in some cases a foundation that is wroughtwith mistakes when it comes to the treatment that should begiven to virtual property. The Domain Name System (DNS) is thebest example of a form of virtual property that has given riseto challenges in law making and administration. The ‘landgrab’ of domain names in the World Wide Web (WWW) havegiven rise to a virtual tsunami of registrations and this hasled to the subsequent erection of levees in the form of a challengeregime. This paper will identify and consider the problems thatthe DNS is facing and suggest the changes that have to be madeto it in order for it to withstand the forces of what will bean increasingly rising sea of domain names on the WWW. This paper will begin with a look at the fissures in the seabedof the DNS by comparing how the management and policies relatingto domain name registration and challenge have shifted and divergedin different jurisdictions as well as by examining the inadequaciesof the original registration regime (ICANN) and challenge policy(UDRP). After identifying the problem, suggestions will be madeto resolve them in the best possible way, which require a revisitof the stakeholder and policy interests in the Internet andthe ownership and control of domain names that essentially functionas an important gateway to the WWW in order to rebalance theseinterests in an attempt to achieve greatest equilibrium. Amendmentswill be proposed to both the registration and challenge regimesas well as to the structure and hierarchy of domain name administrationwhich should be a globally coordinated effort just as the DNSis a common entryway to the global property that is the WWW.     

The New Hong Kong Domain Name Dispute Resolution Policy: A Comparative Analysis

On 24 April, 2001, Hong Kong adopted a new Domain Name Dispute Resolution Policy. This represents the efforts of Hong Kong to strengthen management of its domain name disputes, particularly for 'cybersquatting' cases. This article first analyses the salient features of the Policy, including grounds for complaints, rights of complainants, confusingly similar domain names, use of domain names, evidence of registration and use in bad faith, and legitimate interests of domain name owners. The article evaluates the merits of the Policy, including its flexibility, low cost and time-saving efficiency. It also evaluates its demerits, including its restrictive scope, bias toward trademark owners, inadequate coverage for 'reverse domain name hijacking', limited range of remedies, and possibilities for further court proceedings. The article then concludes that the Policy is laudable as it demonstrates the determination and intention of Hong Kong to observe the international standards and practice in its information technology laws.     

Parallel imports: the never-ending saga on repackaging and use of trade marks may finally be ending ... and not before time

In an Opinion by the Advocate General, several ghosts finallyhave been put to rest in a ferocious 30-year jockeying for positionbetween brand owners and European importers over the abilityof importers to replace existing brand owner trade marks withthe importer's own brand names (ie repackaging) for purposesof the European market harmonization.     

Statutory Nuisance: The Sanitary Paradigm and Judicial Conservatism

Despite its long history, statutory nuisance law is still consideredimportant in dealing with localised environmental problems.But it is an area of law that is now beginning to creak—theresult of both its historical origins and the attitude of contemporaryjudges to its modern application. Key recent decisions of theBritish courts are examined, and the judiciary is shown to haveadopted an unduly narrow approach and one that is based on amisinterpretation of legislative intention. A detailed examinationof Parliamentary debates in the middle of the nineteenth centuryduring the development of statutory nuisance laws shows thatthe concept was promoted as being broad, flexible and expansive.Modern courts have singularly failed to adapt statutory nuisanceto contemporary needs, a lost opportunity since the statutorynuisance regime can provide an effective means for local governmentto deal rapidly with environmental problems as well as an accessibleremedy for the private individual.     

我国突发环保事件应急立法的目标模式及其实现战略

由于立法体系不健全、法律制度不完善等原因,我国突发环保事件的应急处理在实践中出现了一些问题。本文在对目前我国突发环保事件应急立法存在的问题进行分析之后,认为应结合我国法律体系的结构制定由宪法性规定、《环境保护法》的专门章节规定、《突发环境保护事件应急法》及其实施细则或条例以及其他环境法律法规和规章的相关规定组成的应急立法目标模式。由于目标模式的实现需要一段时间的立法积累和创新、完善,因此有必要结合实际制定其实施战略。     

论我国台湾地区的法定停车位制度及其启示

我国台湾地区法定停车位是法律规定开发商在修建区分所有建筑物时必须设立的最低数额的停车位。其在法律权属上被强制划定为共有部分,但开发商可以通过拟制分管契约的方式为业主设定对特定停车位的专有使用权。业主享有的专有使用权只能依附于专有部分而存在,权利的行使也需要受到法律的限制。我国台湾地区法律还创设了完备的登记制度,有力地保护了区分所有建筑物功能的完整性和业主对于特定停车位的专有使用权。借鉴我国台湾地区的经验,在我国的立法当中应当明确停车位所在空间的性质,并通过制度安排,将业主所购买的车位权利合法化;此外,还应完善并统一不动产登记制度,使停车位的权属与让与制度获得公示效力的保护。     

Legislative Waiver Reconsidered: General Deterrent Effects of Statutory Exclusion Laws Enacted Post‐1979

In recent years, the juvenile justice system has undergone a “get tough” transformation. One component of the system which has experienced substantial alteration is the mechanism by which states allow for the waiver of juvenile offenders to adult criminal court. Most of the state systems now have some form of transfer procedure in place and many allow for the automatic transfer (or statutory exclusion) of juveniles who have been charged with certain offenses. Although the effects of waiver laws on individuals have received much empirical attention, their effects on the respective states’ aggregate level violent juvenile crime rates are less understood. In this study, we examine the relative effects of legislative waiver laws in 22 states that have added statutory exclusion provisions since 1979. In doing so, we assess whether legislative waiver should be reconsidered.     

诚实信用原则之于商标法

通过对商标法实施近30年历史的总结,论证了诚实信用原则在商标法中的基本原则地位和作用,检讨了现行法和"修订送审稿"、"征求意见稿"在贯彻诚实信用原则方面存在的不足,并提出了改进的思路。认为应提高对抢注、恶意异议等不正当行为和侵权行为危害性的认识,强化对商标权的保护;关于确权程序的规定应当增加责任条款,并加大对侵权行为的打击力度。     

Protecting Intellectual Property on The Internet. Experience and Strategies of Trade Mark Owners in a Time of Chance

It is often stated that the protection of names, brands and trade marks on the Internet is a critical issue for intellectual property (IP) owners. However, while tales of infringement abound, there have been few court cases. IP specialists looking to establish a policy for the protection of names on the Internet need to assess the scale of the problem. What evidence of infringement or abuse exists? How are trade marks at risk-just in the domain name system or on other parts of the Internet? Can the courts or registration authorities be relied upon to support intellectual property owners? Is affordable net protection a myth or a reality for trade mark owners? This article attempts to quantify the risk of infringement or abuse of intellectual property, to examine measures of control proposed by the World Intellectual Property Organization (WIPO) and to suggest policies that can be adopted to minimise the risk of infringement and to maximise the chance of successful action against infringers.     

Environmental Liabilities of Property Owners: Examples of Common Risks and Strategies to Anticipate and Avoid Them

Property owners are subject to potential environmental liability from a number of sources including strict statutory liability for remediation of contamination on their properties as well as liability for conditions within their buildings. These latent environmental risks are often exposed in the context of a transaction, redevelopment, or change of use. Commonly used due diligence protocols can avoid or mitigate many risks but owners need to be aware of the limitations and pitfalls of due diligence. In many circumstances, environmental insurance should also be considered as part of the overall environmental risk management strategy.     

居住权的源流及立法借鉴意义

居住权是传统大陆法系国家民法典中的一项重要的物权制度,在西法东渐时却没有被我国民法所借鉴。在物权法草案的讨论过程中,学界对于是否引入居住权意见不一。文章从分析居住权的概念及其源流入手,探讨了我国是否能够引入居住权以及如何在立法体例和具体内容上设计居住权诸问题,以期能为居住权这一理论争议提供解决方案。     

物权法定原则

物权法定原则决定了物权法的基本性质与特征,也严格地限制了当事人在创设新型物权、改变既有物权之内容等方面的意思自由。物权法定原则的内涵是指物权的种类、内容、效力以及公示方法由法律规定,原则上不能由法律之外的规范性文件进行规定,也不能允许当事人自由创设物权的种类以及确定物权的内容、效力和公示方法。作者比较了物权法定模式的表述方式和基本功能,并认为我国物权法中物权法定中的“法”应当被主要限定为法律;司法解释应当具有一定的创设物权的功能;判例不能创设物权。当事人关于物权设定的约定违反物权法定原则的法律后果,应当根据不同的情况来确定。     

Proposed regulations to govern private business use of tax-exempt bond financed facilities

For the most part, owners of tax-exempt hospitals and other health care facilities should welcome the issuance of the proposed regulations because they generally clarify and liberalize former law. As pointed out, however, in certain instances the proposed regulations do impose additional requirements not found in current law. Accordingly, in those instances in which exempt facility owners may elect to apply the proposed regulations prior to their finalization, a careful analysis needs to be made of whether the old or new regime would be most beneficial.     

引入判例法机制作用谈

成文法以填充的方式实现对法律的完善,判例法以生长的方式实现对法律的完善,这两种方式都各有优缺点。大陆法系和英美法系为弥合法律空隙所采用的将成文法与判例法有机混合的方式,是完善法制的有效途径。我国古代混合法的存在为在司法制度中引入判例法机制提供了实证依据。我国引入判例法机制对司法制度的改革与完善有着重要的意义。本文还就判例法机制的指导思想与运行规则提出了基本设想。     

A Case Study of Semiotic Distinctiveness in Brand Names

Brand names constitute a form of value for commercial products, because they suppose a savings of search costs for the consumer. The law, as a consequence, has the obligation to protect brand names. But the number of attractive brand names is not infinite and sometimes companies seek brand names which are reminiscent of others. In this article a conflict between two companies for the distinctiveness of two brand names is addressed: one Spanish company used the English common noun doughnut for a product similar to the American pastry, while the other company had already registered donut as a brand name, in addition to its variants. This second company sued the first on the grounds that the names were not distinctive. Here we offer the arguments presented to the judge in defense of the distinctiveness of doughnut and the judgment.     

试论行政法律原则在检验检疫行政处罚中的适用

法律原则是法的精髓,它以其特有的恒久性、抽象性和普遍适用性等特点对成文法的滞后性等弊端予以弥补与调整。但其在检验检疫行政处罚等具体执法工作中的适用只能在成文法规则缺失、法条含义模糊、适用法律规则显失公正、法律规则冲突无明确解决方法等时机出现时才能充当其替补角色,而且具体运用时还应遵循相关的限制条件。     

Comparative Statutory Interpretation in the British Isles

Existing studies of statutory interpretation are often of excellent quality but they have tended either to focus on legal practice to the detriment of comparative jurisprudence, or have examined legal reasoning at a level of abstraction which has made empirical study difficult. The author examines a recent development in this area and considers how it might be used to begin a project to identify any divergences in statutory interpretation among the various legal systems of the United Kingdom.     

Fraud in courtship: Annulment and divorce

The possibility of fraud exists in any contract. Courts and custom allow some amount of fraud before voiding the contract. The same principles hold for marriage. This paper provides a comparative analysis of annulment and divorce, shows that there exists a socially optimal amount of fraud in marriage, and demonstrates how changes in the locale's divorce regime result in changing demand for annulments. While substitutability between annulment and divorce is limited, annulment is shown to become more valuable for introducing fault when the divorce regime shifts to no fault. As European nations harmonize their family laws, they should be conscious of this substitutibility.