As you may know, there are generally two approaches to resolve a domain name dispute: one is to take file a civil action with a court; the other more common approach is to go through the alternative dispute resolution proceeding (ADR), i.e., file a complaint with a domain name dispute resolution center appointed by the registry.
For the administrative resolution by expert panels, the parties and the expert panels rely on the domain name resolution regulations as issued by the Registry of the relevant domain names. For the “.com” top-level domain names, such ADR proceeding is called “UDRP” proceeding. For the domain names registered under the country codes (e.g., “.cn”), the ADR policy will be provided by the registry.
The registry for the “.cn” domain names is China Internet Network Information Center (“CNNIC”). It has published its UDRP-like policy to resolve the “.cn” domain names since 2002. The policy has been amended and re-issued in 2006, 2012 and 2014.
The full name of the CNNIC’s policy reads CNNIC Country Code Top-Level (ccTLD) Domain Dispute Resolution Policy (“CNDRP”). Besides CNDRP, CNNIC also published a CNNIC Procedural Rules for the Country Code Top-Level (ccTLD) Domain Dispute Resolution (“Procedural Rules”).
Article 6 of the CNDRP (also see Article 8 of the Procedural Rules) provides that language used in the “.cn” dispute resolution proceedings shall be Chinese, whilst if parties have an agreement or the expert panel has a decision otherwise, other languages can also be used in the proceeding. In other words, English or other languages can be formally used in the panel decision for a “.cn” domain name dispute. In practice, using English in the CNDRP cases is not uncommon. In the circumstances where (i) both parties are not native Chinese speakers, (ii) the complainant can prove that the respondent can speak English and the respondent does not oppose it, or (iii) most claims and original evidence materials are in English, the complainant may request using English in the proceeding. In many cases, the expert panels have accepted such request.
In this connection, we may conclude that, although the Chinese version remains the binding document, English translations of the CNDRP and the Procedural Rules are very important tools for parties and panel experts in practice. Given the domain names are accessible globally, CNNIC should ensure the accuracy of the translations of its policy documents.
Unfortunately, if one compares the original language in Chinese, he/she will find that the English version of the CNDRP, as published at the CNNIC official website (click here), is disturbingly inconsistent with the binding Chinese version.
Briefly, I set out some most obvious defects of the English translation below.
1. Inaccurate translation of the document title
If it is a novel, the title used in the official English translation of the CNDRP would generally be fine, as “CNNIC” and “ccTLD” have been used widely to represent “China Internet Network Information Center” and “Country Code Top-Level Domain”. However, It would be better to avoid abbreviations in a formal translation of a legal document.
This is the least serious issue of the translation — you will see distrubing issues soon.
The English title of the Procedural Rules is more problematic. If you read Chinese, you would see that its accurate translation should be “CNNIC Procedural Rules for the Country Code Top-Level (ccTLD) Domain Dispute Resolution”. However, the translation at CNNIC official website missed the term “Procedural”, which is a key word of the document’s title.
2. Incorrect version of the documents
At the CNNIC official website, the currently published English version of the CNDRP is a 2012 version, which has been revoked and replaced by the currently effective 2014 version already. Although the difference between the two versions are not much (three Articles were amended), it is certainly necessary to ensure the official English translation of the CNDRP to be the latest binding version, or the foreign parties and domain name registrants will be confused (They may have already been confused in the past 3 years).
3. Inconsistent meanings between Chinese and English
While you will find more places of inconsistency, I will only highlight two:
(a) Article 9(3) of the CNDRP reads (Chinese):
Its English translation at the CNNIC official website is:
Article 9 Any of the following circumstances may be the evidence of the registration and use of a domain name in bad faith: …
(3) The disputed domain name holder has registered or acquired the domain name for the purpose of damaging the Complainant’s reputation, disrupting the Complainant’s normal business or creating confusion with the Complainant’s name or mark so as to mislead the public; …
First, please read the opening sentence. the subject of the original Chinese sentence of this Article is “the activity of the domain name registrant”; the verb (predicate) of the original sentence is “constitute(s)”; and the object of the sentence is “registration and use of a domain name in bad faith”. However, in the English translation, the subject becomes “circumstances”, the verb becomes “may be”, while the object of the sentence is “evidence”. Although the meanings of the two versions are largely similar, the accuracy of translation apparently cannot fulfill the requirements to legal documents.
Furthermore, please read the translation of the item (3). In the original Chinese version, the term after “or” is to describe the circumstance where the disputed domain name registrant “confuses the difference between the registrant and the complainant”. However, in the English translation, the sentence becomes “creating confusion with the complainant’s name or mark…” The terms “name” and “mark” are actually not existing in the original Chinese language. In this situation, the English translation has a substantial difference with the original Chinese provision: According to the original Chinese provision, bad faith will be found when the purpose of the registration/acquisition of a domain name was to “confuse the registrant with the complainant”. However, in the English translation, the confusion of the “marks” also constitutes bad faith. The scope of finding bad faith becomes wider. More importantly, such wider scope is indeed a misunderstanding of the term “confusion” in the intellectual property context. In short (sorry I won’t cite theories but this should be a common sense), “confusion” means “the consumer’s confusion on the origin of goods/service”, but not the “similarity” between two names or logos.
(b) Article 10 of the CNDRP
The English translation at CNNIC’s official website:
Article 10 Before receiving the complaint, any of the following circumstances may be evidence of the rights to and legitimate interests in the domain name:
(1) Your use of the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(2) You have been commonly known by the domain name, even if you have acquired no trademark or service mark rights;
(3) You are making a legitimate noncommercial or fair use of the domain name, without intent of or commercial gain to misleadingly divert consumers.
While the aforesaid problems can be excused with the English proficiency of the translator or the limited knowledge to the relevant laws, the translation in this Article 10 deserves to be criticized from the perspective of the translator’s attitude. Without a definition or explanation, the translator used the term “you” to replace the term “Respondents” in the original Chinese version. Also, the contents of the three items in this Article are not consistent with the original Chinese. Comparing with Section 4(c) of ICANN’s Uniform Domain Name Dispute Resolution Policy (“UDRP”), which is made for the resolution of the top level domain names (such as “.com”), one would realize that language in the above translation came directly from the UDRP. However, the translator ignored that the CNDRP language (and even the structure of the provision) has been significantly modified.
There are other inconsistent places in this “official” translation, while I think the above is sufficient to justify that CNNIC should update the translation of legal documents as published on its website. Not just the CNDRP and the Procedure Rules, but also other documents. It is quite bizarre that foreign complainants are actually referring to incorrect documents in their “.cn” domain name disputes, for such a long period of time.
(Image credits: Chris Radley)
Image credits: tinypic.com
* 书是GY送的，并且还包邮——体贴地快递到了我出差的酒店，真是不知道该怎么感谢。另外，Daniel J. Solove 的名字通常被翻译为“丹尼尔·沙勒夫”，为方便记忆，你也可以叫他沙老师或者“So-love”老师。
Just a Note: Recently, I am preparing for teaching a course for entrepreneurs and executive officers under the “Management of Cultural and Creative Business” postgraduate program held by the HKU SPACE. In addition, I myself have sat in a course of “Advanced Intellectual Property Law” led by William Fisher (Terry), the Wilmer Hale Professor of Intellectual Property Law at Harvard Law School. These non-profit work brought me, partially, back to academic life, which is inspiring and interesting. However, after seven years full-time practice as an IP counsel, I see that my way of thinking has been more practical and industrial-oriented.
The following essay (after some edits before posting) was indeed a quick writing completed within 2.5 hours as a part of the answer book for the final exam of the aforesaid Advanced IP Law course. Therefore, the first and biggest thank will be given to Terry, for his always enthusiastic seminars and informative contents therein. This essay, along with the earlier blog posts and forthcoming ones, will become a series of my thoughts on IP & Creative Industry. And hopefully, it can bring something new to both academics and practitioners.
Xinhua, China’s state news agency, has released a policy paper on the enhancement of property protection (“Paper”). The Paper was issued in the joint names of the top powerful authorities in China – Central Committee of the Chinese Communist Party and the State Council, which indicates that it would be a very important document guiding the subsequent reform of regulations and bylaws in connection with various property rights.
The policy Paper has the following highlighted declarations: