Korean law held to pre-empt UDRP in domain name dispute

The Supreme Court has remanded a domain name dispute to the Seoul High Court, holding that Korean law - and not the Uniform Domain Name Dispute Resolution Policy (UDRP) - applied to the case (Case 2004Da72457, February 1 2008).

The Supreme Court held that the Seoul High Court had erred in finding that the petitioner had expressly submitted to the UDRP in entering into a domain name registration agreement with the registrar. Therefore, the respondent was entitled to seek an injunction prohibiting the petitioner's use of the domain name under Korean law.

The Supreme Court held that the case should be reviewed and decided under Korean law (and not under the UDRP), because the agreement was executed between the petitioner and the registrar only. Therefore, the agreement was not binding on the substantive rights of the petitioner and in relation to the respondent.

The court based its decision on a procedural defect in the choice of the governing law and did not review the substance of the claims.

Therefore, the Seoul High Court must now decide whether the registration of the domain name at issue contravened the relevant Korean legislation - that is, the Trademark Act and the Unfair Competition Prevention and Trade Secret Protection Act, among other statutes.

Sung-Nam Kim and Nayoung Kim, Kim & Chang, Seoul