도메인이름 이전청구권 부존재확인청구소송에 관한 판례의 비판적 고찰

People who want to settle disputes related to register and usage of ‘.com’ domain name, generic top level domains (hereinafter ‘gTLDs’) can apply to mediate said disputes to World Intellectual Property Organization Arbitration Center and other organizations certified by Internet Corporation for Assigned Names and Numbers. Besides, a person who likes to mediate disputes with respect to register and use of ‘.kr’ domain name, country code top level domains (hereinafter ‘ccTLDs’) can submit an application to Internet address Dispute Resolution Committee (hereinafter "IDRC"), complying the rules of mediating disputes related to domain name. A domain name registrant is supposed to agree with a contract, including provisions to force him or her to agree mandatory mediation when he or she enters into a contract with a registrar. Trademark holders generally apply to mediate disputes to WIPO Arbitration Center or other certified organization for gTLDs and IDRC for ccTLDs. Usually, WIPO Arbitration Center decides that a registrant must transfer domain name to Trademark holder, and IDRC decide that a registrar must remove the register of registrant's domain name. However, as a right, a registrant can bring a lawsuit to appeal the decision of WIPO Arbitration Center or IDRC to the applicable court. However, any person cannot bring a lawsuit against the principle of good faith. An unclean registrant, so-called cyber squatter, knows that trademark holder has a right to register domain name and use it as a trademark. What is more, a registrant has intent to use the domain name with the anti-competitive purpose and to use domain name by infringing trademark. The purpose for cyber squatter to register domain name is to hinder a trademark registrant from registering disputed domain name by squatting said domain name, and then said cyber squatter to take excessive profits by blackmailing of trademark holder's money. Moreover, a cyber squatter using domain name as trademark may confuse customers, and give potential clients wrong recognition since he or she had already registered domain name before trademark registrant use domain name. Without any intent to use domain name as appropriate way except anti-competitive purpose or trademark infringement, a domain name registrant's bringing a lawsuit to blackmail of trademark holder's money is to misuse a right to sue, and it is against the principle of good faith. If a registrant, who has a intent to squat, wants to reserve and delay the administrative process to transfer domain name for gTLDs and to remove said registrant's register for ccTLDs, and he or she sues a trademark holder to decide whether trademark holder has a right to claim for prohibition of the use of domain name and whether trademark registrant has a right to claim for transfer of domain name, the court should dismiss not only a claim related to the right to claim for ban of the usage of domain name, but a claim with respect to the right to claim for transfer of domain name as a defense of trademark holder before the merit as well. Dismissal for the claim related to the right to claim for transfer of domain name as a pretrial defense of trademark holder is the best resolution to settle domain name disputes now.