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Question of "Marital Status" when dealing with Hong Kong's Immigration Department

Following is a reply by the Acting Secretary for Security, Mr Lai Tung-kwok, to a question by the Dr Hon Margaret Ng in the Legislative Council on Wednesday, June 15, 201

If immigration officers suspect that the information on marital status provided by the applicant is incorrect while processing an application under relevant legal provisions, they will allow the applicant to give an explanation. If the explanation furnished is both reasonable and satisfactory, the Immigration Department (ImmD) will proceed with the application according to procedures for processing the applications. However, if the immigration officers have reasonable grounds to suspect that the applicant has furnished false information, further investigations will then be made. The investigations made and possible prosecution action taken by the ImmD will certainly be based on facts and evidence.


(a) As regards marriage registration, in respect of cases in which prosecution was instituted against those who had made a false declaration for the purpose of procuring a marriage and in contravention of the Crimes Ordinance, there were 68 in total for the period between 2008 and 2010, 65 of which were convicted.

During the same period, there were 678 prosecutions for conspiracy of defraud by means of false marriage (or commonly referred to as "bogus marriage"), with 624 convicted. Among them, three cases involved visa applications or extensions of stay.

(b) Under the law of Hong Kong, "marriages" include those entered into in Hong Kong under the Marriage Ordinance (Cap 181), which means the voluntary union for life of one man with one woman, and that a rite of marriage recognised by law has been performed in accordance with law.  Furthermore, in accordance with the Matrimonial Causes Ordinance (Cap 179) and the Married Persons Status Ordinance (Cap 182), a monogamous marriage contracted outside Hong Kong in accordance with law will also be recognised as a legal marriage. Any person who is a party to the above "marriage" is considered "married".

Under the Matrimonial Causes Ordinance, "married" persons may file a petition or an application for divorce to the court in Hong Kong. The "divorce" will become effective upon conclusion of proceedings and granting of a divorce certificate by the court. Divorces obtained outside Hong Kong are also recognised under Hong Kong law.

 In accordance with the Matrimonial Causes Ordinance, a husband and a wife may enter into a separation agreement or, in other cases, either party may apply to the court for separation under the ordinance. Under the common law, apart from considering whether the applicant is living with his/her spouse, factors such as whether the applicant is still maintaining husband-and-wife relationship with his/her spouse (e.g. whether they have ceased to recognise the existence of their marriage and whether he/she intends to reconcile with his/her spouse, etc.) will be taken into account before judging whether they have been "separated".

(c) Immigration officers will provide appropriate assistance to applicants in case they raise any doubt when filling in their marital status. Meanwhile, they may also request applicants to provide supporting documents as appropriate in relation to their marital status, such as marriage certificates, divorce certificates, deeds of separation or other relevant legal documents.


Arbitration's Cost-advantage is fictitious, says a 2005 Survey

Many people are advocating the use of arbitration as a method of dispute resolution alternative ("ADR") to traditional litigation in court. One of the frequently used arguments is it takes up costs less than spent in court proceedings. This has become a fiction as in recent years, costs of international arbitration have increased dramatically. Practitioners are nowadays extremely zealous about arbitrations proceedings. When complex arbitration matters are coupled by volumnous paper works, arbitration proceedings have become costly much to the surprise of the parties to the proceedings.

A survey in 2005 carried out among in-house lawyers of international corporations having experience in international arbitrations has come up with the following significant findings in respect of arbitration's costs:

  • 50% of the respondents who answered the releant question ranked expense as the most important disadvantage of arbitration.
  • on the question of costs on international arbitrations comparing with litigation:
    • 26% of respondents considered it more expensive to a great extent.
    • 38% considered it more expensive to some extents.
    • 23% considered it about the same and
    • 13% considered it less expensive.

In short, majority of the respondents are of the opinion that arbitraion is more expensive than litigations. At the same time, only a minority are believing that arbitrations help to save costs.


Caution issued on recovery agents, says the Department of Justice

The Department of Justice warns the public to beware of touting activities by recovery agents advertising their services in helping clients handle claims for accident compensation on a "no win, no charge" basis.

It warned today such activities can constitute offences of champerty and maintenance, and there is concern the interest of the victims of personal injury cases may be jeopardised as their legal rights to compensation may not be fully protected.

The caution was issued today after Police arrested 21 people for champerty and maintenance offences across Hong Kong July 3, charging two with conspiracy to commit maintenance, champerty and conspiracy to commit champerty.

The department said people injured in accidents, including employees injured at work and traffic accident victims, should seek proper legal advice from solicitors or the Legal Aid, Labour or Social Welfare Departments.

In their advertisements the recovery agents claim they will help injured people pursue claims for a fee chargeable only when they are successful in recovering damages. However, pursuant to agreements, the victims would have to pay the agents a substantial portion of the compensation obtained from the defendants.

Unlawfully maintaining or sharing the profits of legal proceedings can be a crime subject to jail terms and fines.

A new announcement of public interest will be broadcast on all television and radio stations from tomorrow to remind people to be aware of these unlawful activities.


Hong Kong will Legislate against Anti-competition Trade Practices

In March 2007, the Commerce and Economic Development Bureau published the Report on Public Consultation on the Way Forward for Hong Kong's Competition Policy. The Report utters that the results of its public consultation in 2006 revealed that competition legislation iss broadly welcomed by the community. On 6th May 2008, the Bureau released a public consultation paper setting out detailed proposals for developing a anti-competition statute universally applicable to all trade and service sector. A summary of the major proposals for such an anti-competition law are set out below.

Summary of Recommendations

The main recommendations are summarised as follows:-

New Legislation - General

  1. New legislation should be introduced to guard against anti-competitive conduct that would have an adverse effect on economic efficiency and free trade in Hong Kong.
  2. Rather than target individual sectors of the economy, the legislation should apply to all.
  3. Provision should be included in the legislation to allow the Government to grant exemptions to the application of the law in defined circumstances on public policy or economic grounds.
  4. The regulatory authority should have the discretion to disregard inappropriate complaints, so as to guard against the new law being used to stifle legitimate competitive business activities.
  5. The new law would not target market structures, nor seek to regulate “natural” monopolies or mergers and acquisitions.

New Legislation – Broad Provisions

  1. The new legislation should cover the following types of anti-competitive conduct :
    • Price-fixing
    • Bid-rigging
    • Market allocation
    • Sales and production quotas
    • Joint boycotts
    • Unfair or discriminatory standards
    • Abuse of a dominant market position.
  2. Such conduct should not be an offence per se, but rather, the particular conduct must be proven :
    a) to have been carried out with the intent to distort the market; or
    b) to have the effect of distorting normal market operation.
  3. There should not be lengthy and detailed descriptions of these types of conduct in the law as such. Appropriate guidelines should be drawn up by the regulatory authority in consultation with relevant stakeholders that would include :
    • detailed descriptions and examples of the types of anti-competitive conduct listed in the law;
    • an indication as to how intent and effect in relation to market distortion might be assessed; and
    • reference to cases dealt with under existing local sector-specific laws and related overseas legislation.

Regulatory Framework

  1. A regulatory authority, to be known as the Competition Commission should be established under the new law. The Commission should have a “two-tier” structure, comprising a governing board underpinned by an executive arm that would include staff with relevant expertise.
  2. The Competition Commission should have an advocacy role, and should be tasked with keeping the scope and application of the new law under review.
  3. The Competition Commission should have sufficient powers to allow it to investigate thoroughly any suspected anti-competitive conduct prohibited by the new legislation.
  4. The Government should seriously consider the merits of establishing a Competition Tribunal to hear cases brought by the Competition Commission and to hand down sanctions.
  5. With regard to sanctions, civil penalties should apply in cases where anti-competitive conduct is found to have occurred.
  6. The Competition Commission should be able to apply for an order from the Competition Tribunal (if established) to require an offender to cease and desist from anti-competitive conduct, pending a decision on the case.

Illegal Recovery Agents are Targeted by the Police with 3 Arrested

3rd July, 2008, HONG KONG

Efforts have ascalated on combating the illegal activities carried on by unscrupulous recovery agents.

Critics have on numerous occasions expressed serious concern on the activities of recovery agents in Hong Kong. These recovery agents operate under the "no win, no fee" purported pledge. Many are in the disguise of non-profit making bodies.

They appeal to injuried workers and traffic accident victims because they demand no legal fees from them. In some cases, the agent or a related party even provides high interest rate loans o victims to meet their daily expenses before a case is settled. By the time of settlement, the interests incurred will have taken away a substantial part of the compensation.

At the same time, the agent charges a substantial portion of damages recovered as high as 30%. Concern was expressed that recovery agents is easily driven to early settlement for lesser work to be done and because of such ill motive, resulting in a lower amount of compensation ignorant to the victims.

According to this issue of Legal Aid Council newsletter, the Government has produced a radio API which is ready to be launched. The TV API will be completed very soon. Besides and most importantly, police are investigating 9 cases on recovery agents and 3 arrests have been made.


Sex Traders Are INNOCENT:Website Operator Jailed for 18 months. Sex Traders Well-being Jeopardised

The operator of a popular online prostitutes directory was convicted of conspiring to live off the earnings of prostitution by a judge in the District Court. He was jailed for 18 months yesterday. He is a 48 year old gentleman called Chan Yuk-bun. The site's designer, programmer, photo processor and three photographers were each ordered to perform 180 hours of community service. They were also fined $20,000. They were lucky on not having been jailed like Chan.

The seven men made money by charging for adverts posted by sex workers on the website. The website has been run for three years. It was stopped after their arrest in May 2006. The case represented the first conviction of operatiors being involved in sex trade related advertising. Chan admitted his company made $90,000 to $100,000 a month by charging each prostitute $600. His personal bank account showed $6.5 million in deposits during the years the site operated.

The lucrative  income made as a result of such operation suggested that such online advertisements were effective in bringing customers to sex traders. Deputy Judge David Dufton stated that a deterrent sentence was needed because such websites might allow syndicates to hide other criminal activity.

The company sent photographers to brothels to take pictures of the women, which were uploaded to the website and included in the adverts, which included the prostitutes' names, age, service offered, fees and addresses.

Judge Dufton accepted the prostitutes in this case were not subjected to control, influence or direction, unlike if they were involved with a pimp. When deciding on these types of cases, a judge can easily be guided by morality as traditionally people "look down" sex workers on the mere reason that they have "betrayed" their souls by "selling" their intimacy which should belong to their loved ones. As found by the judge, the prostitutes suffered no loss. They were in fact agreeable on using those online adverts for their trades. While Chan's earnings might be envious to many, it does not mean that Chan should be made a criminal when no evidence of harm is found.

The judge said the case was serious because it was "a sophisticated operation" and "encouraged prostitution on a large scale" for three years. This statement helps to suggest that the judge has in mind that prostitution is a criminal phenomenon that must be curtailed. This is simply moralistic. The judge also commented that the website employed no measures to prevent access by the under-aged.  This statement means that underage's access to the site is a harm to them.

Hong Kong law does not prohibit prostitution. Many sex traders therefore run their trade alone in a flat. This does not breach the law. It is therefore not easily understandable while prostitution is in principle permitted, why promotion of this types of brothels has become illegal. The offence of living on the earnings of prostitute has the objective of sanctioning the abuse of sex traders. It does not aim at killing the business of single-woman brothel. The judge, while cherishing a moral cause, has in fact killed the livelihood and well-being of the sex traders who are legitimate under the law to trade their sexual intimacy legally.

Lastly, when operators using web to promote a sex trader's activities can be convicted of living off the earnings of prostitute, the list seems endless. In that event, the landlord who lets the flat to the prostitute, the woman collecting rubbish from her, the postman delivering letters to her and the Water Authority providing her with daily water for drinking and shower should also be brought before the judge for punishment.


Barristers

Barristers are one of the two streams of the legal profession. The other stream is solicitors.

The traditional work of barristers is advocacy - they present cases in court, where their ability to speak and to think quickly "on their feet" as the evidence unfolds is what they are skilled in. Barrister will be "briefed" (instructed) by a solicitor - it is the solicitor who first contacts the client and has initial conduct of the case. However, the barrister is to a fair extent independent of the solicitor and can take an independent judgment as to how to conduct the case. Barristers are occasionally advocates in magistrates’ courts, but they mainly work in the District Court and Family Court (it is possible to have a solicitor advocate), the High Court or in appeal courts.

Related to this advocacy work, barristers also deal with advice on litigation and the drafting of documents ("pleadings") related to litigation.

Most solicitors are graduates with a law degree. They must also undertake professional training both by a one year studying either at the University of Hong Kong or the CityU for the Postgraduate Certificate in Laws. They then go through a pupillage with a qualified barrister. More senior barristers can apply to become a Senior Counsel ("take silk").

Barristers are all sole practititoners, but they often share premises ("chambers") and administrative staff. The barristers’ profession is regulated by the Hong Kong Bar Association which deals with matters such as training, qualifications and complaints.


Solicitors

Solicitors are one of the two streams of the legal profession. The other stream is barristers.

Solicitors undertake most of the work in magistrates’ courts, Family Court and District Courts - both preparation of cases and also advocacy.

Litigation is only a small part of the work of the solicitor’s profession as a whole. Some are involved in commercial work relating to business eg dealing with commercial transactions, corporate matters, land, share and other property dealings. There is also a large amount of private client work which does not involve any litigation (if all goes to plan!) such as the conveyancing of houses, making wills, advising on tax matters and so on.

Solicitors May Advertise

Solicitors in Hong Kong are permitted to advertise their business. It is common to find solicitors putting up advertisements on newspaper, TV and mini-bus. They provide legal services to individuals who look for affordable rate of legal fees. Therefore, it is not surprising to find to lawyer who is prepared to draft and attest a deed poll for change of a person's name for $500. Some law firms set up sub-offices serving the needs of local clients.

Most solicitors are graduates with a law degree. They must also undertake professional training both by a one year studying either at the University of Hong Kong or the CityU for the Postgraduate Certificate in Laws. They then have to undergo two years of training contract with a solicitor in practice.

Solicitors operate in Solo or partnerships.

The solicitors’ profession is regulated by the Hong Kong Law Society which deals with matters such as training, qualifications and complaints. Most law firms are very small in size. They have 3 to 5 solicitors and not more than 20 clerical staff in support. Partnerships having 5 or more partners or firms with more than 10 solicitors are regarded as big firms.


Discretionary Trust in Hong Kong

What is a Discretionary Trust?

Discretionary trusts are used by families to make long-term financial provision for sons and daughters. The key point about a discretionary trust is that funds or property put into the trust do not count as assets for the purposes of benefits or in terms of the responsibility of the local authority or health authority to fund care. This is because the funds put into a discretionary trust do not belong to the beneficiaries but to the trust.

Why is it called a Discretionary Trust?

This kind of trust is administered by trustees. The deeds which set up the trust give the trustees discretion as to how the funds are to be used. The intended beneficiaries have no rights to either the income or capital held in trust. To work in terms of financial planning for children an additional characteristic is usually that the trust is set up for the benefit of a group of people, not a single person. This can be a 'class' of beneficiary of whom the son or daughter is a member, for example all people with Downs Syndrome or with an Autism Spectrum Disorder.

Can I put my house into a Discretionary Trust?

Yes. Your home is an asset and can therefore be put into trust. This is commonly done through setting up a trust in the parents' will which makes provision for the property to be put into trust. There are several reasons why this may be a good idea.

First, the trustees can undertake the task of managing and maintaining the property. This is particularly important where the disabled person may lack legal capacity and therefore would be unable to manage money and to contract for the maintenance services.

Second, because the property is put into trust it does not belong to the individual and therefore cannot be subject to a legal liability owed by a beneficiary.


Trust, Trustees, Trust Deed, Discretionary Trusts

History of Trusts

They were first established by barons, knights and other wealthy nobles during the Crusades, and were a way of ensuring their land and possessions would be disposed of in accordance with their wishes should they become over familiar with Turkish steel.

So, while there are many varieties of trust, they all share the same ultimate aim: to ensure that assets such as land, money, shares and even antiques (collectively known as the "trust property") are passed on to the "beneficiaries" in a way that the "donor" would want.

Trustees

The legal owners of the "trust fund" are known as "trustees", and it is they who administer the fund on a day-to-day basis and ensure that tax is paid out of it.

They also decide where to invest the trust's assets, although this must always be in the best interests of the beneficiaries.

Usually, the trustees will seek professional advice to ensure the assets are wisely invested from both a tax and asset allocation perspective.

Trusts can be used in all kinds of circumstances such as:.

When someone is unable to handle their own affairs because of incapacitation If a person wants to distribute land or assets to loved ones while they're still alive Or, like many hapless crusaders, under the terms of a will. But there is more. Individual trusts can have attractive tax advantages and are often used to reduce inheritance tax and for other tax planning purposes. Hong Kong does not have inheritance tax now. Setting up a trust for this tax saving reason is no longer necessary.

Legal advice and Trust Deed

However, bear in mind that trusts and their tax treatment can be highly complicated and need to be discussed at greater length with an expert.

Anyone interested in setting up a trust will need a solicitor to draw up the "trust deed" and will have to appoint trustees.

At least two is the norm. Usually, one trustee is a professional familiar with trusts - a lawyer, for example - while the other is a family member or relative.

Here, we focus on three types of private trust that are widely used to manage and protect a family's wealth.

Discretionary trusts

Probably the most common private trust is the discretionary trust.

The name derives from the trust's open structure, as numerous beneficiaries can be named in the "trust document" and the donor does not have to stipulate at outset who will be receiving what and when.

Discretionary trusts are additionally flexible in that the trustees can add or remove beneficiaries, including those that are unborn, at any point.

It is the role of the trustees to decide when to allocate assets or income to one or more of the beneficiaries, and, of course, how much.

Interest in possession trusts

Interest in possession trusts (sometimes called "life interest trusts") are often created as part of wills and are structured in such a way that the surviving spouse, or "life tenant", will have a right to receive an income for the rest of his or her life, or for a fixed period at least.

A male divorcee, for example, may want his second spouse to receive an income on his death but for his children to then receive the capital on her death.

This income will be paid once the trustees have deducted the relevant tax, after which a further liability or reclamation of tax (minus the dividend tax credit) may be apparent depending on the individual beneficiary's circumstances.

However, the spouse will not be entitled to the trust property itself, which will usually be passed on to any children.

Accumulation and maintenance trusts

Accumulation and maintenance trusts are often used by grandparents to support their grandchildren.

For example, they may be created to cover a child's education and general living costs, with any income that remains left to "accumulate" and then added to the trust property.

In the early years, while the grandchildren are young, accumulation and maintenance trusts are run very much like a discretionary trust.

However, the grandchildren usually become entitled to the trust property between the age of 18 and 25, and at this time the accumulation and maintenance trust turns into an interest in possession trust.

In other words, the income is now given to the beneficiaries as of right.

The tax treatment on this type of trust works in the same way as for discretionary trusts, until the beneficiaries become entitled to the income and capital.


Duplicating Teacher's Speech is Not an Offence

@eLaw Focus. Author: Thomas Tse. Partner, Yip, Tse & Tang

elaw120x120A school-cert candidate was found having duplicated the sound recording of the teaching content of a tutor. Customs officers in Hong Kong arrested him for investigation and no charge had yet laid. Declining cost and increasing convenience of the recording media make content duplication unprecentedly common among youngsters. MP3 and MPEG are the most popular formats for digital sound recording and video.

The arrested school-cert candidate would not have been so arrested if he had not placed the duplicated contents for sale on an auction site. Duplicating copyright works such as sound recording for self-use is not an offence. Distributing it or placing it for sale is however liable to criminal prosecution.

Speech not recorded on a media has no copyright. This is because copyright protection requires 'fixation'. Students are free to record but as a matter of coutesy should seek the teacher's permission. Students should however be careful. Although the speech itself has no copyright, the speech might contain contents which are copyrighted such as a lyric or an article. In any event, never put anything on sale or make further duplicates. Students should not place anything materials on the Internet for people to download or listen. This can cause trouble.

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@eLaw.com.hk contains information about technology laws of Hong Kong and other Internet or computer related legal information. It is managed by Hong Kong lawyers and the contents mainly relate to Hong Kong laws.

It covers areas about Hong Kong laws such as e-commerce laws, software licensing, domain name disputes, intellectual property rights, defamation, technology, source code escrow deposit, data protection and privacy, telecommunications and Internet liabilities.

Thomas Tse is the main architect of @eLaw.com.hk assisted by colleagues, Raymond Tang, Pierre Sun. He is the author of the Chinese book on Hong Kong E-Law. Mr. Tse is a partner of Yip, Tse & Tang, which is a law firm very famous on practice of traffic accident claims, workplace injuries, bankruptcy, IVA and eLaws. The firm's Technology and Telecom Practice Department was established in 1998.

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Government immigration department streamlines smart ID card applications

The Immigration Department of the Hong Kong Special Administration Region has chosen to use FileNet's ECM solution to help streamline its application process for a recently launched Smart ID Card.

Under a new immigration identification system, Hong Kong's seven million residents are expected to replace their traditional ID cards with new multi-application smart identity cards by 2007. With the Smart ID Cards, holders will be able to enjoy a variety of government electronic services in a safe and secure manner.

Apart from immigration applications, a smart identity card can also support other value-added non-immigration applications, including e-Cert - digital signature certification - and library cards.

The Smart Card project comprises three major components:

  • conversion of all historical ID applications and related records
    into digital images to provide fast, online retrieval. These are currently
    kept on microfilm and index cards.

  • development of a new, multi-application smart card and supporting
    high-performance computer system to deliver security and resilience

  • territory-wide ID card replacement by 2007

    It is reported that FileNet's Image Services is a core component of this project. In addition to providing the Immigration Department with a high-performance, high-capacity system for managing the capture, storage and retrieval of all historical ID applications and related records, it is also fully compliant with the government's exacting auditing procedures.

    According to FileNet, integrating seamlessly with other enterprise applications and systems at the Hong Kong Immigration Department, FileNet's ECM solution enhances overall efficiency since it enables Immigration Department staff to retrieve historical ID records instantly without having to wait for microfilm or index cards to be found and dispatched from archives. This will help significantly increase the speed at which the new cards are processed. With the ECM solution in place, the Department now has a secure and permanent store of critical immigration information to safeguard from disaster and misuse.

    'The Smart Card project is an ideal showcase for FileNet's powerful ECM capabilities - in this case, managing the vast amount of historical data that must now be made instantly accessible to the Immigration Department' said Hugh Sutherland, vice president of Asia Pacific Operations, FileNet Corporation. 'It is yet another example of how FileNet can help organizations manage content by automating, simplifying and streamlining their business processes.'

    For further information about FileNet, please visit their website at FileNet.com


  • Television Broadcasts Ltd. V. Hemmul aka Huang Zhi Ming Claim Number: FA0111000102521

    PARTIES: The Complainant is Television Broadcasts Ltd., Kowloon, Hong Kong (“Complainant”). The Respondent is Hemmul aka Huang Zhi Ming, Guangzhou City, Guang Dong Province, CHINA (“Respondent”).


    REGISTRAR AND DISPUTED DOMAIN NAME:
    The domain name at issue is , registered with Dot.tv.

    PANEL'S FINDINGS:

    1. Complainant operates a commercial television station in Hong Kong.

    2. Complainant has used the letters, TVB as its trademark since 1967.

    3. Complainant registered trademark, TVB under the trademark laws of Burma/Union of Myanmar; Cambodia, France; Germany; Hong Kong; Japan; Malaysia; Panama; Peoples Republic of China; and South Africa. All of the trademark registrations were prior to Respondent's registration of .

    4. Complainant states that it owns and operates a web site under the domain name, tvb.com since 1999. No evidence was presented to show this to be true. But since it is not disputed by Respondent, it is taken as admitted.

    5. Respondent registered the domain name, on May 20, 2001.

    6. Respondent is a resident of the Peoples Republic of China and was a resident on May 20, 2001.

    7. Respondent was on constructive notice of Complainant's right in its trademark, TVB, on account of the trademark registration in the Peoples Republic of China.

    8. Complainant has rights and interests in the trademark, TVB.

    9. Respondent has no rights and interests in the domain name .

    10. The trademark and disputed domain name are identical.

    11. Respondent registered and is using the domain name, , in bad faith.

    DISCUSSION

    Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

    Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

    (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

    (2) the Respondent has no rights or legitimate interests in respect of the domain name; and

    (3) the domain name has been registered and is being used in bad faith.

    Identical and/or Confusingly Similar

    Complainant shows that it has used the trademark, TVB, since 1967. Complainant shows that it registered the trademark, TVB, in a number of countries including the Peoples Republic of China. The registrations all were undertaken prior to Respondent's registration of the disputed domain name. Complainant clearly has rights in the trademark, TVB for the purposes of the requirements needed to proceed on this issue.

    The trademark, TVB, is identical to the domain name, . Internet level indicators “such as ‘tv’ do not affect the similarity or identicality between the mark and a disputed domain name.” see Don Cornelius Productions, Inc. v. Fred Fluker d/b/a Futurevision, DTV2001-0026 (WIPO Dec. 7, 2001). see also Toronto Star Newspaper Ltd. v. Elad Cohen, DTV2000-0006 (Jan. 22, 2001), holding that the domain name “tstv.tv” and the trademark TSTV are identical. see also HSBC Holdings Plc v. Iain Rayner, DTV2001-0021 (WIPO Nov. 5, 2001); COMSAT Corporation v. TELE Satellite, DTV2001-0011 (WIPO June 7, 2001).

    Complainant prevails on this issue.

    Rights or Legitimate Interests

    Complainant shows that it has used the trademark, tvb, since 1967 in its operation of the television station in Hong Kong. Complainant registered the trademark in a number of countries including the People's Republic of China. It can be inferred that Complainant has never licensed or authorized Respondent to use the trademark. It can be inferred that there is no relationship between the parties, business or otherwise, that would permit Respondent to use the trademark, tvb. Complainant contends that it has exclusive right to use the mark. see America Online, Inc. v. Tencent Communications Corp. FA93668 (Nat. Arb. Forum Mar. 21, 2000). Respondent makes no claim that he has ever been known as tvb or tvb.tv.

    As a result of Complainant's showing, and Respondent's apparent lack of rights and legitimate interests in the domain name tvb.tv, the burden must shift to Respondent to demonstrate Respondent's rights and legitimate interests in the domain name. see Clerical Med. Inv. Group Ltd v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000); MedStaff Alternatives, Inc. v. Dustina M. Bennett, FA97260 (Nat. Arb. Forum July 11, 2001).

    Respondent may demonstrate his rights and legitimate interests in the domain name by any of the methods set out in Paragraph 4(c) of the Uniform Domain Name Dispute Resolution Policy. Respondent makes no attempt to show rights and legitimate interests in the domain name. Respondent merely contends that Complainant had not registered its trademark in Tuvalu nor taken active steps to put the registrar, DOT TV, on actual notice of Complainant's trademark rights. Complainant is not required to perform either of these acts to maintain its trademark rights. Complainant registered its trademark in the People's Republic of China, the country in which Respondent is a resident.

    Respondent, having undertaken to show none of the factual situations that would establish rights and legitimate interests in TVB or , it must be found that Respondent has no rights or legitimate interests in the domain name. Complainant prevails on this issue.

    Registration and Use in Bad Faith

    It is Complainant's responsibility to show bad faith in order to prevail in a domain name dispute. See Paragraph 4, Uniform Domain Name Dispute Resolution Policy. Complainant's pleadings and submissions are so terse and incomplete that it makes it difficult to ascertain the true facts and circumstances of this case. Respondent's submissions are even more terse and incomplete. However, it is clear that any use of by Respondent on the Internet would create a situation where it would be “inconceivable that the respondent could make any active use of the disputed domain name without creating a false impression of association with the Complainant.” Sony Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000). See also Singapore Airlines Ltd v. P & P Servicios de Communicacion S.L., D2000-0643 (WIPO Aug. 29, 2000). That confusion is all the more evident when it is recognized that Complainant operates a television station. Any use on the Internet of in the areas of the People's Republic of China and Hong Kong, is bound to cause confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's web site or location or of a product or service on Respondent's web site or location. See Paragraph 4(c)(b)(iv), Uniform Domain Name Dispute Resolution Policy. The question remains whether Respondent will intentionally attempt to attract, for commercial gain, Internet users to his web site or other on-line location. Respondent makes no attempt to show what he intends to do with the domain name. But upon notification by Complainant to Respondent of the possible trademark infringement between the trademark and the domain name, Respondent shut down the web site.

    Respondent admits the following: “But this registration is not on purpose, and this is ratified by Television Broadcasts Limited in the communicate. We admit that we will transfer the domain name in dispute to Television Broadcasts Limited preferentially without damnify. And this attitude is ratified by Television Broadcasts Limited either…after realizing the attitude of the Television Broadcasts Limited, I have shut down the website…” Respondent states that he did not know of Complainant's trademark rights when the domain name was registered. The domain name was not registered “with malice” Respondent contends. There is no evidence to find “malice” in this case, and none is found. Malice has no part in domain name dispute proceedings.

    The admission of Respondent that he will transfer the domain name in dispute to Complainant “preferentially without damnify” is taken to be an admission that the domain name infringes on the trademark of Complainant and that the use of the domain name will cause the situation proscribed by Paragraph 4(b)(iv). Under these circumstances, it is found that the elements of this section have been met. Complainant prevails on the bad faith issue.

    DECISION: TRANSFER ORDERED

    IT IS HEREBY ORDERED THAT THE DOMAIN NAME, , NOW REGISTERED TO THE RESPONDENT, HEMMUL ALIAS OF HUANG ZHI MING, BE TRANSFERRED TO THE COMPLAINANT, TELEVISION BROADCASTS LTD.

    Dated January 24, 2002


    Types of Risks of E-Business

    According to Marsh, Inc. a leading provider of cyberinsurance services to e-businesses, the following are most obvious types of risks for conducting online businesses:

  • Damage, Theft, or Disclosure of Electronic Information. Information security (data integrity, confidentiality, and availability) is critical to the expanding e-Financial Services industry. Sensitive transactions, such as customer payments via credit or debit card, health care information, etc. require a high degree of security and confidentiality.

  • Loss of Service. In cyberspace, the reasons for Web outages are largely the result of "intangible" or human events, and less likely due to uncontrollable causes such as fire or earthquake.

  • Authentication and Non-Repudiation. Especially in business to business e-commerce, both parties must be properly authenticated. A digital signature may be required to form a binding contract and two essential questions must be answered electronically: Can we with confidence confirm whom we are dealing with and can we prove that they did in fact make the transaction?

  • Computer Fraud. The costs of network/Internet fraud extend far beyond the fraud or crime itself. Financial losses alone may result from the need for network downtime while locating and fixing the security breach, the need for an emergency audit, public relations damage control, increased fraud insurance premiums, and loss of business.

  • Privacy. Concerns about privacy are increasing daily from regulators worldwide. The issue bridges confidentiality of information from a security standpoint and electronic protection of sensitive digitized data. The critical issue is protection of information from an identifiable person.

  • Malicious Code. Despite the advances in anti-virus software, this remains a serious global cause of data damage and destruction, disruption in service, and destruction of computer components.

  • Legal and Regulatory Uncertainty. At present, the extent to which banking, insurance, securities, and other laws will be affected by the Internet is largely unknown.

  • Intellectual Property, Content, and Advertising Infringement. Everything on a Web site can be copyrighted as intellectual property. Even business processes over the Web today can be patented. The Internet creates new exposures for content and advertising that are unlike any other medium; although it is complicated by lack of global uniformity in managing these issues.