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August 2, 2014

Landmark Win in Lafarge Domain Name Dispute

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Managing Intellectual Property

On April 22, the People’s Court of the city of Da Nang issued a decision ordering the revocation of the “lafarge.com.vn” domain name registered by a Vietnamese individual, giving Lafarge S.A. of France a 10-day “sunrise” period to register the domain name itself. This brought to a conclusion a five-year battle over cybersquatting and set a precedent for domain name cases in Vietnam. In a report on the settlement, Vietnam’s national domain-name administration agency VNNIC stated, “This is the most prominent court settlement of a domain name dispute so far, and can be seen as a model for judicial bodies to apply for the settlement of disputes going forward.” Tilleke & Gibbins advised Lafarge on the case.

Case Background

France’s Lafarge SA, founded in 1833, is a world leader in building materials, specializing in cement, concrete, and aggregates. The company’s “LAFARGE” trademark has been protected in Vietnam since 1974, while its LAFARGE and Device trademark has been protected in Vietnam since 1995.

In 2009, Lafarge discovered that the Vietnamese domain name www.lafarge.com.vn had been registered by Pham Thi Ngoc Han, a woman from Da Nang. Concerned about the cyber-squatting, in February 2010, Lafarge sent a cease-and-desist letter to the registrant, seeking a voluntary return of the domain name to Lafarge. In reply to the letter, Ms. Han brazenly demanded USD 1,200,000 for the return of the domain name.

Concluding that the registrant had no legitimate interest in amicably resolving the case, Lafarge decided to proceed with legal actions to retrieve the disputed domain name. However, no authorities could help Lafarge to resolve the dispute. The Market Control Department of Da Nang could not handle the case although they interrogated the cyber-squatter. The Inspectorate of the Ministry of Information and Communications denied the administrative actions set forth under Decree 97/2010/ND-CP and declined to deal with the case by administrative route. The Inspectorate of the Ministry of Science and Technology, though they acknowledged the administrative action under Decree 97/2010/ND-CP, stayed the proceedings due to a lack of legal documents guiding the Decree. The Department of Science and Technology of Da Nang turned down the case as they could not summon the cyber-squatter.

When no administrative bodies accepted the dispute, Lafarge had to fall back on the court. On March 25, 2013, Lafarge brought a lawsuit against the cyber-squatter to recover the domain name, understanding that the defendant would likely be untraceable, having possibly fled to another country as she was being hunted for a criminal offense. Therefore, the plaintiff relied on various regulations to request the court to officially search for the defendant. The search of the court would pave the way for an ex parte resolution of the dispute.

When the timeframe for the search expired, the defendant still had not appeared. Accordingly, on April 22, 2014, the court opened an ex parte hearing to conclude the case. In the hearing, the court ordered a revocation of the domain name and gave Lafarge a sunrise period of 10 days to register the domain name after the revocation.

Significance of the Victory

The suit is the first ex parte IP case that the local Vietnamese courts have ever dealt with, setting a precedent for all future cases in which the parties cannot trace down the defendant. In light of Lafarge’s successful approach to achieving an ex parte hearing, other IPR holders need only follow suit to seek such a hearing for not only domain name dispute cases but also for other IP cases.

The case is the second domain name dispute case ever handled by the local courts, with the first being a dispute over the domain names “samsungmoible.vn” and “samsungmobile.com.vn” in 2011. The suit marks a positive development in applying the laws to resolve domain name disputes by the competent authorities. Currently, there are two parallel systems for resolution of domain name disputes, namely, a system set forth under the Law on Information and Technology and its subordinate documents and a system provided under the Law on Intellectual Property. In the Samsung case, the court relied mainly on the Law on Information and Technology to resolve the dispute. In the Lafarge case, the court seems to have also relied on the IP system.

Subordinate agencies under the Ministry of Information and Communication such as the Inspectorates of the Ministry often have refused to acknowledge the system under the IP Law. VNNIC, a subordinate agency under the Ministry in charge of withdrawing disputed domain names upon the request/order of competent authorities, had in fact usually disregarded the system under the IP Law and had declined to withdraw disputed domain names as instructed by the competent authorities attempting to resolve the disputes based on the IP system. In the Lafarge case, VNNIC dropped its objections and withdrew the domain name www.lafarge.com.vn after receiving the court’s judgment.

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