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Abstract

On July 24, 2001, the Supreme People's Court issued a judicial interpretation as a guideline for all Chinese courts in deciding cybersquatting cases. However, the interpretation followed closely to the U.S. Anti-Cybersquatting Consumer Protection Act. With inherent legal and judicial differences between the two countries, the authors analyze whether and to what extent China can transplant the American experience to construct Chinese effective legal mechanisms against cybersquatters. In so doing, authors first discuss the Lanham Act and using trademark infringement as a cause of action. Authors are quick to point out that cybersquatters do not use registered trademarks to conduct business or sales; they harbor these marks as domain names. Consequently, authors discuss elements of trademark infringement and compare that with the Chinese trademark law. In particular, Chinese judges, in deciding trademark infringement cases, undertake a three-prong test: 1. whether the plaintiff owns the exclusive right to use the mark; 2. whether any of the defendant's acts fall into the category of infringing acts; and 3. whether the defendant's infringing acts causes damage to the plaintiff. The authors further discuss how this test was applied in two recent cases. Then, the authors turn to the concept of dilution in the US and the special protection for well-known trademarks in China. The authors analyzed the Federal Trademark Dilution Act in detail and followed by a short discussion of the Chinese Unfair Competition Law. In concluding the article, the authors return to the U.S. Anti-Cybersquatting Consumer Protection Act and how it should assist the Chinese in deciding cybersquatting issues.