Vietnam’s new Decree No. 147/2024/ND-CP on the management, provision, and use of internet services and online information (“Decree 147”), which will come into effect on December 25, 2024, replacing Decree No. 72/2013/ND-CP (“Decree 72”), introduces several changes to the regime for domain name dispute resolution. The new decree aims to clarify the legal framework and address some longstanding inconsistencies between Vietnam’s laws on intellectual property and information technology.
The main changes related to domain name dispute resolution under Decree 147 are summarized below.
Removal of Prescriptive Actions
Decree 147 no longer lists specific actions for resolving domain name disputes. Decree 72 had outlined three methods: negotiation/mediation, arbitration, and court. However, IP practitioners had long criticized this approach, arguing it conflicted with the IP Law, which additionally allows administrative action.
By omitting these methods, the new decree implies an acceptance of administrative action as provided in the IP Law. However, Decree 147 remains silent on establishing a dispute resolution forum aligned with the CPTPP’s requirement for a UDRP-like model. Currently, Vietnam’s available forums do not fully conform to the UDRP framework. An anticipated circular may provide further guidance on this aspect.
Deactivation of Domain Names
Decree 72 does not have any provision on the deactivation of a domain name. However, Decree 147 has stipulated some 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.
Clearer Criteria for Dispute Resolution
Article 16 of Decree 147 sets out three clear criteria that must be met for domain name dispute resolution to proceed: (i) confusing similarity with the plaintiff’s trademark, trade name, or personal name; (ii) the defendant’s lack of legitimate rights or interests in the domain name; and (iii) bad faith.
Previously, Decree 72’s broader list of elements led to potential misinterpretation, suggesting that proving any single element (such as confusing similarity) might suffice to justify domain name cancellation. By clarifying these elements, Decree 147 resolves this ambiguity and represents a significant improvement in legal clarity.
Formalizing Domain Name Freezing During Proceedings
Decree 147 also formalizes the freezing of disputed domain names during proceedings, a practice briefly mentioned in Decree 72 that was previously regulated by ministerial circulars. Decree 147 gives VNNIC (Vietnam Internet Network Information Center) the obligation to lock domain names at the request of authorities; as a government-issued decree, this carries greater regulatory weight than a ministerial circular. Practical challenges may persist, especially in civil lawsuits, where domain name freezing requires a preliminary injunction. Such injunctions are rarely granted in IP cases in Vietnam; in fact, only one preliminary injunction has been issued since the IP Law took effect in 2005.
Enforcement of Judgment
Decree 147 formally addresses the process for domain name transfer or cancellation following a successful dispute resolution. Under the new rule, the plaintiff has a 45-day grace period after the judgment’s effective date to register the domain name. After this period, the domain name will become available for public registration.
This provision conflicts, however, with the Law on Enforcement of Civil Judgments, which grants plaintiffs a five-year window to enforce judgments. Given that enforceable judgments are often delayed—particularly in cases involving foreign respondents, where judgments may be delayed by over a year—the 45-day period may be impractical.
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.
Lack of Effective Remedies
Decree 147 does not introduce new remedies beyond domain name cancellation and re-registration within the 45-day window. In cases where the complainant seeks a transfer, VNNIC may require additional documentation, including agreements, VAT invoices, and transfer prices—requirements that complicate the dispute resolution process unnecessarily.
While Decree 147 represents progress, it falls short of resolving the fundamental issues arising from overlaps between the IP Law and IT Law. For example, courts handling disputes under the IP Law may award legal fees, whereas such recovery is not permitted under the IT Law. Additionally, the decree’s mention of “unfair competition” as proof of bad faith overlaps with existing IP Law provisions (under Article 130.1(d)) on domain name disputes.
Moving forward, Vietnam may consider unifying its domain name dispute resolution framework under a UDRP-based model. Such a unified regime would simplify the process and better protect brand owners’ rights in Vietnam’s digital economy. In the coming time, the Ministry of Information and Communications is expected to issue a circular to provide further guidance on domain name dispute resolution. This anticipated circular may help bridge gaps and offer more detailed instructions on handling domain disputes under both legal frameworks.
For further information, please contact:
Linh Duy Mai, Tilleke & Gibbins
duylinh.m@tgvn.vn
