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Trade Name Beijing Baoma sues BMW's Chinese authorized agent
The on-going dispute between BMW and Beijing Baoma Automobile Service Co. Ltd (Beijing Baoma) over the trade name BAOMA has been warming up. Most recently, Beijing Baoma in sueing Beijing Yanbao Automobile Service Co. Ltd (Beijing Yanbao), a BMW authorized agent, at Beijing No. 1 Intermediate People's Court.
Beijing Yanbao is engaged in the sale, repair and maintenance work of BMW cars. Beijing Baoma was recently notified that a car owner who repaired their car at Beijing Yanbao would get a sticker bearing the words "Beijing Baoma Automobile Service Co. Ltd" to prove that their cars had been repaired there. Beijing Baoma claimed that Beijing Yanbao's behavior would make consumers believe that it was Beijing Baoma Automobile Service Co. who had repaired their car. Beijing Baoma went on to state that they had never authorized Bejing Yanbao to use their trade name.
Beijing Baoma further stated that they registered their trade name with the State Administration for Industry and Commerce on May 29 1992 and have been using since. Beijing Yanbao however have no authority to used the name "Beijing Baoma Automobile Service Co. Ltd." and therefore infringed Beijing Baoma's rights to the trade name. They requested that the Defendant cease the infringement and make a public apology.
Baoma.com.cn" domain name dispute case
September 1, 2003, Germany's BMW CNOOC complaints) against domain name "baoma.com.cn" Futian District of Shenzhen Huaqiang electronic world Huiheng Huang Huiheng up computer sales counters for the complaint to the China International Economic and Trade Arbitration Commission Domain Name Dispute Resolution Center (hereinafter referred to the domain name dispute resolution) to lodge a complaint.
Procedures in the case officially began on September 8, 2003, at the end of October 30, 2003. Xue Hong, chief expert in the case by the President and Group President and Engineering, composed of experts Guo Shoukang, the group eventually supported the complainant's complaint, ruling the domain name "baoma.com.cn" transferred to the complainant.
First, the parties stand
(A) The complaint asserts that the complainant has been the trademark of its world-renowned Chinese counterparts BMW trademark "BMW" and phonetics trademark "BAO MA" in the Chinese Trademark Bureau for registration. China's State Administration for Industry and Trade Marks Office in the June 2000 edition of the "Directory of key national trademark protection" that "BMW" trademark as a key protection of trade marks.
Domain name dispute case "baoma.com.cn" recognition "in baoma" with the complainant, the first use of the registered trademark "BAO MA," the same, and the complainants to identify some of the names of the companies, "BMW" sound, and the complainant's trademark name and the names of the companies in which the public is "bao ma" Therefore, the use of the domain name dispute causing public confusion and complaints against the rights and interests of consumers first. Furthermore, the complainant in this case was for "baoma" does not have the exclusive right to use their trademarks and name, where controversial domain name registration no later than the date of the complainant's trademark registration period, it was the complainant and the main part of the domain name in dispute does not enjoy legitimate rights and interests.
"BMW" trademark in China have very high visibility, "BMW" is not as innovative as the complainant, but now the term has almost nothing to do with "BMW" together. In modern society, "BMW", except refers to "the German car company BMW" or "BMW", it almost would not be used as a day-to-day vocabulary. Complaint should know that "BMW" is the use of the complainant and all the "Auto" and other well-known trademarks on the product. In such cases, complaints were "BMW" on the Main Board and trademarks used in the computer on its website openly says, "BMW's performance, the public price," and apparently intends to use the "BMW" marks a good reputation to gain an unfair advantage.
Complaint to the complainant's own well-known trade mark registration of a domain name, objectively speaking, as a trademark owner to prevent the complainant's trademark for its own domain name registration, impede the complainant to use their own Internet domain name in commercial activities, thus the complainant trademark violations.
According to the provisions of the settlement, and for the above reasons, the complainant's request for a ruling in this case Group : This controversial domain name should be transferred to the complainant.
(2) the complainant's reply
1 complaint in his brief on the China International Economic and Trade Arbitration Commission Domain Name Dispute Resolution Center, raised objections to the jurisdiction of the case.
(1) "China Internet Information Center Domain Name Dispute Resolution" and the relevant rules of procedure and no clear indication whether the administrative domain name dispute resolution mechanism, which a judicial or arbitral activities.
① the China Internet Network Information Center, not the executive, not the executive of its own powers, the power to legislate, it formulated and promulgated the "China Internet Information Center Domain Name Dispute Resolution" is the organization's activities are a point of order, and not laws, regulations and administrative rules of the generally binding and enforceable.
Even the China Internet Network Information Center is commissioned by the executive authorities took the exercise of administrative powers, but because of the "China Internet Information Center Domain Name Dispute Resolution" and the relevant rules of procedure do not provide the administrative proceedings of the meeting and complicated administrative relief channels. Therefore, the domain name of the controversial domain name dispute settlement body is not a specific administrative activities, is not the exercise of the executive power.
Second, obviously, is not the domain name dispute settlement body exercise judicial power and judicial power only enjoy the people's court.
③ "China Internet Information Center Domain Name Dispute Resolution Procedure Rules" Article (1) provides : "constitute" a solution "domain name holders and domain name registration services agreement between the domain name registration as part of the binding domain name holders." This seems to imply that the power sources of domain name dispute resolution is the result of dispute resolution channels into domain name registration agreement, the formation of an arbitration agreement between the parties. If so, the mechanism for resolving domain name disputes may be seen as an arbitration activities.
However, as a contract, the parties to an agreement should domain name registration and domain name registration services for domain name holders. The domain name dispute domain name registration agreement of the parties is not the complainant, the complainant in any case will not conclude with the formation of an arbitration complaint satisfactory conclusion. So, how can the complainant among others as the basis for a judgment of the arbitration agreement? As a domain name dispute settlement body of the China International Economic and Trade Arbitration Commission Domain Name Dispute Resolution Center, and how to accept the arbitration agreement the parties other than the ruling applied?
(2) Even in normal circumstances the China International Economic and Trade Arbitration Commission Domain Name Dispute Resolution Center domain name dispute cases handled by the power source does not exist, but the present case, the jurisdiction is still non-existent. Because :
① the China Internet Network Information Center, the domain name dispute resolution, "promulgated on September 25, 2002 and September 30, 2002 began to be implemented. Rules of procedure related to the timing or the same time, or no later than that date. And the complaints were baoma.com.cn domain name registration on September 6, 2002, as early as in the "China Internet Information Center under the domain name dispute resolution," the promulgation and implementation time. Therefore, "China Internet Information Center Domain Name Dispute Resolution" and the relevant rules of procedure, the complaint was not retroactive application domain.
Second, the China Internet Network Information Center, the domain name dispute resolution "does not show a retroactive effect. The approach does not require the registration of domain names can approach before the promulgation by the way.
③ between domain name holders and the registration of domain name registration services agreement has been in effect on September 6, 2002 and has fulfilled finished. According to principles of contract law, after the change in the contract as the contract must be approved by consensus the two sides any party can not force the other side to revise the contract. And the controversial domain name registration, domain name registration and domain name registration services were no longer conducted consultations and seek the consent of domain name registration. Therefore, in the domain name registration after "promulgated by the China Internet Network Information Center Domain Name Dispute Resolution" can not automatically become registered first part of the agreement.
④ 84 of the "People's Republic of China Legislation Law" : "laws, administrative regulations, local ordinances and regulations on the exercise of autonomy, regulations on the exercise of non-retroactivity." Accordingly, the "China Internet Information Center under the domain name dispute resolution," and not retroactively.
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