도메인이름의 등록 및 사용으로 인한 분쟁과 도메인이름 보유자와 등록기관 간의 분쟁해결방법에 관한 합의의 효력

Abstract

Where domain names identical, or similar, to trade marks, service marks, trade names or other commercial indications are registered with competent domain name registrars for the purpose of commercial use or any other purposes, the conflicts between domain name holders and trademark owners tend to be of international nature beyond national, or regional, disputes, owing to worldwide access to internet and its commercial use. Many advanced countries, which are keen to protect intellectual property owners from any kind of infringement, have amended their own trademark acts and unfair competition acts, or widely applied tort law to the infringement by the domain name holders of protected intellectual propertu rights to the effect that cybersquatters are able to be effectively controlled or expelled from cyber space. That being said, substantial laws relevant to this matter are very different from country to country, meaning that effective domain name disputes are not easy at all to resolve, on the top of which the difference of laws related to international jurisdiction and conflict of laws makes it worse to effectively resolve such disputes.In this respect, the legal regime of contracts in favour of a third party deserves attention in terms of how domain name disputes of international nature are effectively dealt with. Indeed UDRP is a typical exemplar employed to such purposes and effect, the idea of which is adopted by many countries so as to resolve national domain name disputes. Whereas UDRP applies to very restricted cases of disputes, which are arranged by UDRP itself, the decisions by administrative panels, which are supposed to follow UDRP and the rules for UDRP, are binding on the relevant parties, namely domain name holders and registrars, in the case where the requirements set by UDRP are fulfilled: in the case of domain name holders losing the case in the UDRP proceeding, the decision by the administrative panel is supposed to be implemented, based on the contractual obligation in relation to the trademark owners, the applicant for UDRP proceeding, unless the domain name holders bring the case before the very court which was chosed by the applicant among the mutual competent court provided for by section 1 of Rules for UDRP. In the latter case, the decision by the administrative panel is supposed to be implemented where the lawsuit by the domain name holders is withdrawn, dismissed or ascertained that domain name holders do not have any right thereto. However, the other cases falling outside of the applicability of UDRP are not subject to the binding effect of UDRP, meaning that respective party are not prevented from freely choosing any dispute resolution scheme; in other words, UDRP does not have any voice and any contractual binding effect on the parties against such choices.This article claims that the decisions the fact of which are the same and which have already twice been dealt with by the Korean Supreme Court, namely the decisions of 27 January 2005, 24 April 2008, and is supposed to be dealt with by it can be approached in a different way from what was previously done.