Assessing the impact of Vietnam’s new internet decree on domain name disputes

On November 9 2024, the government of Vietnam issued Decree No. 147/2024/ND-CP on the management, provision, and use of internet services and online information (Decree 147), which will take effect on December 25 2024 and replaces the outdated, 11-year-old Decree 72 on the same topic. Decree 147 will serve as the principal legislation governing a wide range of internet services, including online games, app stores, and social networks.

For intellectual property practitioners, a subject of particular interest under Decree 147 is the updated regulations on the resolution of domain name disputes, particularly when cybersquatters register domain names that integrate the trademarks or trade names of other entities. The main changes, as summarised below, aim to bring clarity to the legal framework and harmonise Vietnam’s laws on intellectual property and information technology.

Decree 72 had outlined three specific methods for resolving domain name disputes – negotiation/mediation, arbitration, and court – with the implication that this was a closed list of permissible methods. This approach was arguably in conflict with the Intellectual Property Law, which additionally allows administrative action.

Decree 147 no longer lists any specific actions, implying an acceptance of administrative action as provided in the Intellectual Property Law. The new decree remains silent on establishing a dispute resolution forum aligned with the Comprehensive and Progressive Agreement for Trans-Pacific Partnership’s requirement for a Uniform Domain Name Dispute Resolution Policy (UDRP)-like model, which may be addressed in a future circular.

Unlike Decree 72, which had no provisions on the deactivation of a domain name, Decree 147 sets out situations where domain names will be deactivated, such as when there is a request from an authority, or when it is discovered that incorrect information was used for registration.

Article 16 of Decree 147 sets out three clear criteria that must all be met for domain name dispute resolution to proceed:

• Confusing similarity with the plaintiff’s trademark, trade name, or personal name;

• The defendant’s lack of legitimate rights or interests in the domain name; and

• Bad faith.

Decree 72 had offered a broader list of elements that could trigger dispute resolution, an approach that was open to potential misinterpretation, as it suggested that proving any single element (such as confusing similarity) could justify domain name cancellation. By clarifying these elements, Decree 147 resolves this ambiguity and represents a significant improvement in legal clarity.

Decree 147 formalises the freezing of disputed domain names during proceedings, a practice that was only briefly mentioned in Decree 72 and was regulated by subsequent ministerial circulars, which have less regulatory weight than government decrees. Now, under Decree 147, the Vietnam Internet Network Information Center (VNNIC) has the obligation to lock domain names at the request of authorities.

Challenges may remain in practice, especially in civil lawsuits, where domain name freezing requires a preliminary injunction. These injunctions have rarely been granted in intellectual property cases in Vietnam; in fact, only one preliminary injunction has been issued since the Intellectual Property Law took effect in 2005.

Decree 147 formally addresses the process for transferring or cancelling a domain name after a successful dispute resolution, giving the plaintiff a 45-day grace period from the judgment’s effective date to register the domain name. After this period, the domain name will become available for public registration.

This new provision conflicts with the five-year window to enforce judgments granted to plaintiffs under the Law on Enforcement of Civil Judgments. In practice, enforceable judgments are often delayed – particularly in cases involving foreign respondents, where they can be delayed by a year or more – and this 45-day period may prove to be unrealistic.

This timeline also differs from the UDRP model, which mandates domain name transfer to the complainant within 10 days of a decision without further action.

Beyond domain name cancellation and re-registration within the 45-day window, Decree 147 does not introduce any new remedies. If the complainant seeks a transfer, the VNNIC may require additional documentation, including agreements, VAT invoices, and transfer prices – hurdles that can unnecessarily complicate the dispute resolution process.

While Decree 147 represents welcome progress, it fails to resolve all the fundamental issues of overlap arising from domain names being covered by the Intellectual Property Law and the Law on Information Technology. A unified domain name dispute resolution framework under a UDRP-based model could be a better approach, simplifying the process and better protecting brand owners’ rights in Vietnam’s digital economy.

In the near term, the Ministry of Information and Communications is expected to issue a circular providing more guidance on domain name dispute resolution, which may help to bridge gaps and offer more detailed instructions on handling domain disputes under both legal frameworks.