Provisions of the Russian law regarding the determination of the legal nature of the domain name

Domain name from the legal position

Before considering the issue of protection of a domain name, let's define the legal nature of this concept. It should be noted that normative acts do not give a clear definition. And as a result, on the one hand, we get completely opposite court decisions, and on the other - the need for generating new ideas, options for decisions taken in the legal field. Based on the fact that the Internet in Russia today is at a fairly high level of development, we can talk about the need to establish legal stability in this industry. Only in this way business will receive reliable guarantees for full-fledged development.

What is a domain name

So, let's define the concept of a domain name. A domain name is a symbolic designation used to identify websites (information resources) on the Internet. Using a domain name, it also simplifies the addressing of network requests. This symbolic designation is registered in a special register in accordance with the rules of business turnover and the procedure adopted.

Russian legislation on domains

Let’s determine the nature of the domain name in accordance with the provisions of Russian law:

1. Having carried out an analysis of some provisions of the Civil Code of the Russian Federation (namely, subparagraph 5 of paragraph 2 of Article 1484 and subparagraph 4 of paragraph 2 of Article 1519), we conclude: the legislator recognizes a domain name as one of the ways of implementing Internet addressing. So the domain name makes it possible to access the Internet website / information resource from a remote computer. This process, in its essence, is a way of providing certain information.
2. By the definitions of paragraph 2 of Article 2 of the Law "On Information, Information Technologies and Information Protection", the information delivery tool is the information technology, which in turn is defined as part of the information system. The right to administer this system is given to the person on whose name the domain name was registered - the administrator. At the same time, there is a contract that contains information that the domain registration was carried out and further provision of services in the information sphere is envisaged. The contract is concluded between the administrator and the registrar of domain names. So obtaining the right to administer the domain is the result of the conclusion of the relevant contract.
3. According to paragraph 1 of Article 8 of the Civil Code of the Russian Federation, the contract is the basis for the emergence of civil rights and obligations.
4. It should also be noted that, in accordance with the provisions of Art. 129 of the Civil Code of the Russian Federation, the domain name is not withdrawn from civil circulation and is not limited to it, as there are no legal regulations for that. So, based on the provisions of civil law, the domain name belongs to the sphere of property law. This determines the ability of the person registering the domain to post information resources on the network. A set of symbols (domain name) is an access tool to the posted information.
5. Note that you can not register a designation that is identical to a domain name as trademarks, if the registered trademark arose after obtaining the right to a domain name. This provision is defined in subparagraph 3, paragraph 9, Article 1483 of the Civil Code of the Russian Federation. In other words, you can not include designations in the domain name that match or are similar to the trademark to the level of complete confusing. It is a designation used in relation to a group of goods that belongs to the class by which the trademark is registered.

"Domain disputes" in judicial practice

It should be noted that cases of litigation on the so-called "domain disputes" in Russia today are common. This indicates an increase in the number of violations and attempts to abuse the law.

For example, we will specify a dispute between the owner of the trademark "holod" and the administrator of the domain "holodok.info".

There are also often disputes caused by the use of third-level domains, when it includes a protected means of individualization - a dispute between domain names "odnokassniki" and odnokassniki.km.ru.

There are also disputes about the recognition of third-level domains as part of a certain trademark: the lawsuit "ufarabota" to the domain administrator of the third level ufa.rabotavgorode.ru.

So, in accordance with the current legislation of the Russian Federation, as well as in connection with the established jurisprudence, the domain name is inferior in priority to trademarks, signs of the designation and servicing of places from which the goods originates, trade names and commercial designations in the event that the registration of a domain name was fixed later than any object of intellectual property. In order not to have any problems with defending the right to a domain name in the future, we recommend taking appropriate preventive measures when registering the rights to any means of individualization.

How to protect the right to a domain name?

In order not to be at risk of losing the right to administer a domain name, it is necessary to register in a timely manner the right to a particular means of individualization: a company name / trademark that are identical to the domain name.

For example, if the name of the Internet project is different from its domain name, care must be taken to protect both designations. Own name must be protected from unfair competition, and a domain name - from attempts to seize it by third parties who can intentionally register an individualization tool that will coincide with the domain name.

In addition to the risk of losing the right to administer a domain name, any Internet project falls under a different risk. This is the risk of determining the cost of operating an Internet project inappropriate in the economic aspect. Such a situation may arise if an individual is administering a domain name, whose relations with a legal entity using the Internet project are not fixed by the contract. Such a risk is strengthened if the balance of the above-mentioned legal entity does not support intangible assets (content, software, etc.). So the Internet project can incur costs for activities such as advertising, search engine optimization, etc.