WIPO 조정결정과 인터넷주소분쟁조정위원회 조정결정 경향 비교

‘Uniform Domain Dispute Resolution Policy (UDRP)’ and ‘Act on Internet Address Resources (“Act”)’ show a significant difference on the scope of application. While UDRP applies only to domain names being registered and used in bad faith (§ 4 a: cybersquatting), the Act applies not only to cybersquatting (§ 18-2②), but also registered trademark infringement (§ 18-2① 1.), likelihood of confusion (§ 18-2① 2.), and dilution (§ 18-2① 3.). In addition, UDRP requires a complainant to prove that the domain name has been registered and is being used in bad faith. This has produced the “passive holding” cases for dispute resolution on abusive registration of domain names. However, the Act requires “registration, ownership or use” of the domain name, therefore being immune to the problems “passive holding” cases produce. Under UDRP § 4 a, the complainant has to show ‘(ⅱ) Respondent has no right or legitimate interests in respect of the domain name’ as well as ‘similarity’ and ‘bad faith’. However, the Act § 18-2③ gives the respondent the burden of proof to show that “Respondent has the rights or legitimate interest to register or use the domain name.” Under the Act, the complainant does not have the burden of proof to show the inexistence of justifications. Therefore, even without a response to the complaint, the Panel may decide to transfer or cancel the domain name irrespective of justifications. The comparative analysis of decisions by the World Intellectual Property Organization (WIPO) and Internet Address Dispute Resolution Committee (IDRC) of Korea will show the differences in respectively applying the UDRP and Act in cases.