인터넷주소자원에 관한 법률 제12조의 해석에 관한 연구

A Study on the Interpretation of Internet Address Resources act Article 12 -Focused on analyzing Supreme Court Decision 2011Da57661 Decided September 12, 2013-

The issue in the case of subject decision is what means "persons who have a legitimate source of authority" and "bad faith" on prohibiting registration of domain names for bad faith (unlawful purposes) in the interpretation of Internet Address Resources act Article 12. Internet Address Resources act Article 12 provides that "(1) No one shall obstruct the registration of any domain name, etc. of persons who have a legitimate source of authority, or register, possess or use domain name for unlawful purposes, such as reaping illegal profits from persons who have a legitimate source of authority. (2) When anyone registers, possesses or uses a domain name, etc., in violation of paragraph (1), persons who have a legitimate source of authority may request the cancellation of such domain name or transfer of registration of such domain name, etc. to a court." This provision have purposes for prohibiting cybersquatting, but the interpretation of this provision had not been clear on determinating "persons who have a legitimate source of authority" and "bad faith" before recent decisions of Supreme Court. UDRP (Uniform Domain Name Dispute Resolution Policy) Article 4 (Mandatory Administrative Proceeding) provides that "(a) (ⅰ) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. (ⅱ) you have no rights or legitimate interests in respect of the domain name. (ⅲ) your domain name has been registered and is being used in bad faith. (b) (ⅰ) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name. (ⅱ) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct. (ⅲ) you have registered the domain name primarily for the purpose of disrupting the business of a competitor. (ⅳ) by using the domain name, you have intentionally attempted to attract, for commercial gain, internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location. (c) (ⅰ) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. (ⅱ) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights. (ⅲ) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue." ACPA (Anticybersquatting Consumer Protection Act-15 U.S.C. §1125(d) Cyberpiracy prevention) provides that "(1)(A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person (i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and (ii) registers, traffics in, or uses a domain name that-- (I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark; (II) in the case of a famous mark that is famous at the time of registration of the domain name, is ide