Further Discussion on Hypothecateability of Domain Name Rights

Boyu Zhu

doi:10.5539/jpl.v1n4p51

Abstract

Domain name rights should be treated as a kind of unattached Intellectual property rights. Intellectual property rights differ from other subject matters of pledge in nature, but its nature is extremely similar to the subject matters of hypothec. It’s well in the trend of statutory principle of modern property law to treat Intellectual property rights as subject matters of hypothec. Domain name rights may be hypothecated and realized in two ways. First, it can be classified as Intellectual property rights meeting the essential characteristics of hypothec property rights. Second, it may be subjected to an enterprise’s collective mortgage, fulfilling the purpose of mortgage by putting the domain name rights into the enterprise’s aggregately mortgaged property. In a domain name rights hypothecation regime, a public notification system should be expressly legislated and a valuation mechanism established and well developed.

Highlights

I agree to the Intellectual property rights saying and think the domain name rights is a kind of independent Intellectual property rights
“The new kind or different content of real right, whether permit by legal doctrine of the real rights,whether it disobeys the masterdom and absolute protection of real rights and whether it could be announced to ensure trade's security as the criterion for the judgement. If it accords with the criterion and there is benefit and need in the society really, we can regard that it doesn’t to disobey with the legal doctrine of real rights, when the operation can be relaxed through the legal doctrine of the real rights, whether real rights on the common law could exist should base on the degree”(Xie Zaiquan,1999:p48).So, outwardly, the Intellectual property rights as the mortgage one is disobeying legal principle of real rights doctrine, but we can find Intellectual property rights as hypothecate token accords with modern trend of real rights after observing carefully and the law should not ignore this development trend but should stipulate the Intellectual property rights existing as the mortgage token
Foregoing paragraphs expound the characteristic as mortgage token, it has illustrated Intellectual property rights should be target of hypothec rather target of quality rights certainly and necessarily and it has analyzed in terms of civil rights that the rights of the domain name should be a kind of independent Intellectual property rights rather the target of quality of rights in our country

Summary

The legal nature of the domain name

The domestic scholar roughly has the following views to the nature of the rights of the domain name: (1) Lay aside temporarily. The very close view to laying aside saying on methodology temporarily is the civil interests saying. Think though the domain name has not been protected as a kind of Intellectual property rights by WIPO yet, but might not deny it as a kind of civil rights and interests at least , otherwise the domain name will possibly be in no protected position awkwardly and passively. A lot of scholars think the rights of the domain name belongs to the category of the Intellectual property rights, but the difference among them is very big.(Dong Hao,March 11,2004). I agree to the Intellectual property rights saying and think the domain name rights is a kind of independent Intellectual property rights

The rights of domain name should have the position of rights

The domain name rights can be the mortgage token

The structured mortgage system of domain name

Way of stipulating of the domain name as mortgage in legislating

The design of relevant system of domain name rights to mortgage