Using res judicata in domain name dispute resolution

In the recent Hong Kong International Arbitration Centre (HKIAC) domain name dispute decision DCN-1600717, an American company, Training Mask, filed a complaint under the China Internet Network Information Centre Domain Name Dispute Resolution Policy (CNDRP) against a Chinese respondent who possessed the domain name trainingmask.cn.

In fact, Training Mask had already requested the transfer of the same domain name in December 2015, when it filed the same complaint at the China International Economic and Trade Arbitration Commission (CIETAC) domain name dispute resolution centre. A three-member CIETAC panel dismissed that claim on the grounds that since the respondent did not attempt to make any financial gain by offering to sell the domain name, and words like “training” and “mask” are commonly used in English, bad faith as required by articles 9(3) and (4) of the CNDRP was missing. Without disclosing the previous filing, Training Mask refiled the complaint at HKIAC in January 2017. Raymond Ho, the HKIAC appointed sole panelist, dismissed the case, this time based on the common law principle of res judicata.

Domain name dispute resolution (DNDR) policies generally allow parties adversely affected by proceedings to seek recourse in court in respect of DNDR panel decisions. For this reason, cases involving an already disputed domain name are rare. HKIAC records show that “refiled” requests are generally based on procedural defects during the initial filing, such as parties not paying the registration fee on time, for example. However, just like any judicial or quasi-judicial process, DNDR proceedings are subject to abuse. If not successful in one DNDR forum, some complainants try their luck at having their legal rights decided at a different DNDR forum, betting on the small chance that panelists of a different service provider will decide on the request differently.

SHANG CARRIE SHU is ADR legal counsel at the Hong Kong International Arbitration Centre