European Court of Human Rights will consider a domain dispute in Russia
At the beginning of 2014, there was most likely the first case in Russia of appealing against the results of the domain dispute in the European Court of Human Rights.
The reason for filing a lawsuit with the ECHR was the court’s verdict regarding O2.ru domain rights: Alexander Volkov has been the owner of the O2.ru domain name since 2003 for 10 years. However, the company from St. Petersburg "Odva", registered in 2007, went to court and took away the domain from the copyright holder, even without having a similar brand.
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Events developed as follows:
At the end of 2012, Odva LLC filed a lawsuit against Alexander Volkov in the Moscow Region Arbitration Court demanding that the O2.ru domain be transferred to the company due to the fact that its owner violates its intellectual property rights: the O2 domain name is confusingly similar to the name firms. In 2013, the court decided to transfer the domain name O2.ru to the Odva company.
Despite the fact that A.Volkov received the right to the domain name several years earlier than the legal entity was registered, and also that the similarity of the domain name ([otwo]. RU) and the company name is doubtful, the court considered the defendant’s rights to domain invalid.
According to the representative of A.Volkov, lawyer Anton Sergo, - according to the current legislation, there really is a ban on the use of a corporate name by a legal entity that coincides with the corporate name of another legal entity or similar to it to the extent of confusion, if the said legal entities carry out similar activities and the name of the second legal entity was included in the unified state register of legal entities earlier than the firm name of the first legal entity tsa.
But at the same time, an obvious contradiction is striking: A. Volkov is not “another legal entity” and is not even a private entrepreneur, which the court knew about.
The court decided that the actions of A.Volkov are unfair competition, despite the fact that the site has not had any information on the site for the last few years, apart from indicating that the site is working. The court also referred to Art. 10 of the Civil Code, which establishes a ban on the actions of citizens and legal entities, carried out exclusively with the intention to cause harm to another person, as well as abuse of the right in other forms.
In analyzing this case, the following discrepancies between the conclusions of the courts and the actual circumstances of the case are striking:
Firstly, A.Volkov registered and started using the domain name more than 4 years before the creation of the company as a legal entity.
Secondly, the domain name O2.ru consists of a letter of the Latin alphabet and a number and is the designation of a chemical element - oxygen. His English reading is [otwo.ru]. All this gives reason to doubt the identity of the domain name and the name of the company. A domain name similar to the degree of confusion with the company name ODVA could be, for example, Odva.ru or Odwa.ru.
Thirdly, A.Volkov is a natural person and is not a business entity (neither a commercial organization, nor a non-profit organization carrying out income-generating activities, nor an individual entrepreneur, for this reason the rules cited by the court regarding a violation of a legal entity could not apply to him the rights of another legal entity to a company name, as well as the rules on unfair competition, as the domain owner could not compete with the firm Odva.
The combination of these circumstances allows us to talk about the violation of fundamental human rights and freedoms, which served as the basis for applying to the European Court of Human Rights.
Postscript: We also note the position of the plaintiff in the domestic Russian court case: "According to the spokesperson ... the company decided to sue the domain name after its owner refused to sell it" (see RBC Daily newspaper, 16/01/2014 ).
The reason for filing a lawsuit with the ECHR was the court’s verdict regarding O2.ru domain rights: Alexander Volkov has been the owner of the O2.ru domain name since 2003 for 10 years. However, the company from St. Petersburg "Odva", registered in 2007, went to court and took away the domain from the copyright holder, even without having a similar brand.
')
Events developed as follows:
At the end of 2012, Odva LLC filed a lawsuit against Alexander Volkov in the Moscow Region Arbitration Court demanding that the O2.ru domain be transferred to the company due to the fact that its owner violates its intellectual property rights: the O2 domain name is confusingly similar to the name firms. In 2013, the court decided to transfer the domain name O2.ru to the Odva company.
Despite the fact that A.Volkov received the right to the domain name several years earlier than the legal entity was registered, and also that the similarity of the domain name ([otwo]. RU) and the company name is doubtful, the court considered the defendant’s rights to domain invalid.
According to the representative of A.Volkov, lawyer Anton Sergo, - according to the current legislation, there really is a ban on the use of a corporate name by a legal entity that coincides with the corporate name of another legal entity or similar to it to the extent of confusion, if the said legal entities carry out similar activities and the name of the second legal entity was included in the unified state register of legal entities earlier than the firm name of the first legal entity tsa.
But at the same time, an obvious contradiction is striking: A. Volkov is not “another legal entity” and is not even a private entrepreneur, which the court knew about.
The court decided that the actions of A.Volkov are unfair competition, despite the fact that the site has not had any information on the site for the last few years, apart from indicating that the site is working. The court also referred to Art. 10 of the Civil Code, which establishes a ban on the actions of citizens and legal entities, carried out exclusively with the intention to cause harm to another person, as well as abuse of the right in other forms.
In analyzing this case, the following discrepancies between the conclusions of the courts and the actual circumstances of the case are striking:
Firstly, A.Volkov registered and started using the domain name more than 4 years before the creation of the company as a legal entity.
Secondly, the domain name O2.ru consists of a letter of the Latin alphabet and a number and is the designation of a chemical element - oxygen. His English reading is [otwo.ru]. All this gives reason to doubt the identity of the domain name and the name of the company. A domain name similar to the degree of confusion with the company name ODVA could be, for example, Odva.ru or Odwa.ru.
Thirdly, A.Volkov is a natural person and is not a business entity (neither a commercial organization, nor a non-profit organization carrying out income-generating activities, nor an individual entrepreneur, for this reason the rules cited by the court regarding a violation of a legal entity could not apply to him the rights of another legal entity to a company name, as well as the rules on unfair competition, as the domain owner could not compete with the firm Odva.
The combination of these circumstances allows us to talk about the violation of fundamental human rights and freedoms, which served as the basis for applying to the European Court of Human Rights.
Postscript: We also note the position of the plaintiff in the domestic Russian court case: "According to the spokesperson ... the company decided to sue the domain name after its owner refused to sell it" (see RBC Daily newspaper, 16/01/2014 ).
Source: https://habr.com/ru/post/209388/
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