In November 2023, we wrote about the High Court decision in
Junzhi Wang & Anor v T.C. Pharmaceutical Industries Co. Ltd [2024] 1 MLRH 549 ("
HC Decision"), which was the first reported judgment in Malaysia examining whether the Malaysian courts have jurisdiction to review and set aside a decision of a World Intellectual Property Organization (
WIPO) Administrative Panel under the Uniform Domain Name Dispute Resolution Policy ("
UDRP"). The High Court held that it did not.
In February 2026, the Court of Appeal unanimously dismissed the appeal against the HC Decision, affirming it in full and providing some additional clarity on the proper recourse (
or lack thereof) for a party who is dissatisfied with a WIPO UDRP decision.
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For some context of what a UDRP complaint process is, and a more detailed summary of the background facts to this case, do take a gander at our case note
1.
But as a recap: The Respondent, a Thai company, is the global proprietor of the popular "Red Bull" trademarks for energy drinks, including registered trademarks in Malaysia and China. The Respondent had filed a UDRP complaint with WIPO against the 1
st Appellant after he had acquired 11 domain names incorporating the “Red Bull” name, such as <redbullchina.com>, <redbullchina.cc>, <redbullbeijing.com>. The 1
st Appellant had registered them through WebNIC, a domain name registrar incorporated in the British Virgin Islands (“
BVI”). The WIPO Panel ruled in the Respondent’s favour, ordering all 11 domain names to be transferred to the Respondent.
The Appellants then filed civil proceedings here in Malaysia, claiming that the Respondent’s act of filing the UDRP complaint constituted an unlawful interference with trade. Among the reliefs sought was an order that the WIPO Panel's decision be set aside and the domain names remain registered in the 1
st Appellant’s name. The High Court dismissed the claim, held that it had no jurisdiction to review or set aside a UDRP decision. The Appellants naturally appealed.
The Respondent had also filed a counterclaim for abuse of legal process, but we won’t go into all that for this article.
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The Court of Appeal dismissed the appeal and affirmed the HC Decision. The Court of Appeal began by affirming the High Court’s characterisation that the Appellant’s claim was not a genuine standalone action for unlawful interference with trade, but merely an appeal against the WIPO Panel’s decision. The Court of Appeal put it quite bluntly: the unlawful interference claim was “
a trojan horse… — to smuggle in what is in substance an appeal against the WIPO Decision.” Reason being that the primary relief sought in this case was a court order setting aside the WIPO Panel's decision. It also did not help that the Appellant’s own witness conceded under cross-examination that the suit would not have been filed but for the WIPO decision.
The Court of Appeal then went through a number of UK cases, which the High Court did as well, but went further by adopting and following those decisions and held that the function of the Courts is
not to act as an appellate or review body over WIPO Panel decisions, more so when cl 4(k) of the UDRP does not create a cause of action. The Court of Appeal recognised the UDRP process is meant to be a specialised, efficient and inexpensive dispute resolution mechanism for domain name disputes. To permit parties, who voluntarily submitted to the UDRP process, to relitigate the same issues in national courts would undermine and defeat the objective of the UDRP system, encourage forum shopping and create conflicting decisions from different national courts.
On jurisdiction, the Court of Appeal affirmed the High Court’s finding that the Malaysian Courts lacked jurisdiction for the Appellants’ specific challenge. The Court of Appeal provided a detailed limb-by-limb analysis of Section 23(1) of the Courts of Judicature Act 1964, which confers civil jurisdiction on the High Court, based on whether:
in Malaysia.
None of the four limbs were satisfied.
All these facts ought to have been obvious to the Appellants. So then why on earth did the Appellants come all the way to Malaysia to file this suit in the first place? The Appellants relied on the jurisdiction clause in their WebNIC registration agreement, stating it was "
governed by the laws of Malaysia" and that the registrant "
consents to the exclusive jurisdiction of the courts in Malaysia."
The Court of Appeal made short work of this: That clause bound only the 1
st Appellant and WebNIC, the Respondent was never a party to it. In any event, as the Federal Court affirmed in
Hap Seng Plantations (River Estates) Sdn Bhd v Excess Interpoint Sdn Bhd & Anor [2016] 3 MLRA 345, private parties cannot by agreement confer on the Courts a jurisdiction that Parliament has not conferred by statute.
The Appellants also relied on clause 4(k) of the UDRP, which provides that the mandatory administrative proceeding "
shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution." The Court of Appeal dispatched this argument on multiple fronts.
First, clause 4(k) is a provision of a private policy, not legislation. It cannot confer jurisdiction on courts that do not otherwise have it under domestic law.
Second, clause 4(k) does not say parties may file suit in any court they choose. It refers to "a court of competent jurisdiction". On the facts of this case, the Malaysian High Court simply was not such a court.
Third, and notably, clause 4(k) itself specifies that the appropriate jurisdiction is "
either the location of our principal office or of your address as shown in our Whois database." On the evidence, those criteria pointed to the BVI (where WebNIC is incorporated) or China (the 1
st Appellant's Whois address) — not Malaysia.
Finally, and most fundamentally: clause 4(k) does not create a cause of action where none exists in domestic law. Following the English case of
Pankajkumar Patel v Allos Therapeutics Inc [2008] All ER (D) 172: "
The claimant must demonstrate some independent right of action justiciable in this Court ... An unsuccessful registrant therefore faces considerable difficulty in identifying a cause of action upon which the Panel's decision can be challenged."
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The Court of Appeal's decision settles the legal position in Malaysia with clarity and authority: the Malaysian courts are not an appellate or review body for UDRP Administrative Panel decisions. Attempts to relitigate UDRP outcomes in Malaysia, however framed, are unlikely to succeed unless an independent cause of action can be established.
The decision leaves practitioners with two questions worth examining further.
First – What recourse does an aggrieved party to a UDRP decision actually have?
The UDRP itself contains no internal appeal mechanism. Clause 4(k) of the UDRP contemplates that a losing party may submit the dispute to "a court of competent jurisdiction". However, as the Court of Appeal has now authoritatively held for Malaysia, this provision neither creates a cause of action nor confers jurisdiction.
At first blush, this may appear to leave a
lacuna: An aggrieved party has nowhere to go once an adverse WIPO decision is rendered. Clause 4(k) itself points to where to go: "the location of our principal office" (the registrar's principal office) or "your address as shown in our Whois database" (the registrant's Whois address).
In practice, this means that the Malaysian Courts could still have jurisdiction, if the registrar or the registrant’s location is in Malaysia. For Malaysian practitioners advising clients who have lost at UDRP, it ultimately boils down to whether your client can satisfy Section 23(1) of the Courts of Judicature Act to confer jurisdiction, and whether a genuine independent cause of action (that is not a disguised appeal against the WIPO decision) can be established. Otherwise, the options are narrow.
This then leads to the second question – Would a trademark infringement or passing off claim have fared differently?
For the Appellants in this case? Unlikely, given that the lack of jurisdiction in the first place is probably insurmountable.
The position could, however, be different for a trademark owner who loses at UDRP (i.e. whose complaint is dismissed and the domain names are not transferred). Such a trademark owner could then bring an independent action for trademark infringement or passing off, seeking domain name transfer as a consequential relief. Such an action should in principle be a genuinely independent cause of action, one that stands on its own merits and does not require the court to review the WIPO Panel's findings as an appellate tribunal.
There is, however, a practical complication flagged by the Court of Appeal itself. The Court of Appeal noted that a domain name registrar is bound by the UDRP Policy to implement the WIPO Panel's decision rather than any contrary national court order. What then if a WIPO Panel has already ordered for transfer of domain name and a national court directs the opposite? For this reason, the Court of Appeal opined that granting any declaration contradicting a WIPO Panel’s findings would be “an exercise in futility”. That may be so, but what of an injunctive order mandating a transfer or prohibiting a transfer? It may very well be an exercise in futility as well.
Does this mean there is no point in challenging a WIPO Panel’s decision, even if the jurisdiction and independent cause of action criteria are satisfied? That remains a question for another day.
Case commentary by Gooi Yang Shuh (Partner) of the Intellectual Property Practice of Skrine.