Hello. In this article, I would like to talk about how you can sue the domain name from cybersquatters. It's about the domain archlinux.ru. The main problem is that the court must provide proof of infringement of exclusive rights. But I am not an organization or un, I just contribute to the development of the project. It seems to me that in doing so I have certain rights that I can protect.



I studied the issue of domain disputes as much as possible and began to study the legislative aspects on which I will rely. But I need some more help / advice from people who understand these issues.
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It is clear that no one is going to give up a “peaceful” domain. There can be no talk of redemption either, since they are asking for big money: from 1000 euros. Even if they asked for 1000 rubles, I would have thought, because I do not want to support their business. You can of course try to talk to the admin, saying that no company will buy this domain for him for millions, the community will also, and he will only get red tape with the courts. But before that, I would like to eat legally.

The site of the coordination center has a section on domain disputes: www.cctld.ru/ru/activities/faq/disputs and this . There are examples of lawsuits, a collection of court decisions, and step-by-step instructions for domain disputes. Here I will briefly describe the instructions from their site:

Dispute Resolution Issues

1) A website hosted on the Internet violates my copyright and related rights. What to do?
This paragraph states that if content rights are violated, then claims should be sent to a hosting provider.
In the event that a violation of copyright and other related rights is connected with the registration and administration of a domain name, complaints (claims) should be sent directly to the domain name administrator.
In our case, the violation of exclusive rights occurs as a result of using the symbol in the domain name of a similar ... with what? The description here says either about the trademark, or about the service mark. Archlinux is what? After all, this is not a product, not a company name, or a commercial designation. Most of all, the “result of intellectual activity” is probably suitable. By analogy, what is Windows? I found a site that has open registries , but there’s no normal search to find out. In the sense, it seems to me, it is either a Trademark or a Computer Program. But arch linux then no one will take for the goods?

2) How to get information about the administrator who violates my rights?
This clause states that accredited registrars have this information. In accordance with clause 9.1.5. Domain Name Registration Rules - “The Registrar is entitled ( but not obligated? ) To provide information on the administrator's full name (name) and his location (residence) upon a written reasoned request from third parties containing an obligation to use the information obtained solely for the purpose of filing a lawsuit.


The website of the coordinating center states that the applicant (right holder) has the right to request from the registrar information about the administrator of the corresponding domain name in order to subsequently defend their legitimate rights and interests in court by filing a relevant claim with the administrator. The applicant (rightholder) must, motivatedly, substantiate the subject of the violation of rights with attachment of relevant documents confirming exclusive rights , as well as the fact of violation of exclusive rights. This is the problem ... What documents should I provide? I am a firm and do not sell goods under the brand archlinux.
In addition, the dispute resolution page on the registrar's website says: “Full information about the Registrant containing all information about him, stored in the domain name database, can be provided by the Registrar only at the request of law enforcement agencies and the court in the cases and procedure provided current legislation of the Russian Federation. " Some kind of recursion is obtained: in order to sue, I need information about the administrator, and in order to find out, you need to sue. Is this information legal?

3) Infringement of rights to a trademark as a result of registration and use of a domain name.
This clause states that administrators are responsible for violations of the rights of third parties. claims related to the violation of trademark rights should be addressed directly to the administrator of the corresponding domain name.

The registrar provides a form of communication with the administrator, but I am strongly confident that the administrator will not respond to my peace request. So, to get right to the case, I need his address to sue him. So, the registrar still has to give me (according to the previous point) information about the administrator. We look for contact information on the registrar's website:


Now you need to send a written application for requesting data to the registrar. My thoughts are on the justification of the violation of rights in the next section. And about the information “Please do not send documents by registered mail with a declared value, since the delivery time in this case is significantly increased”: I don’t know if such a request is normal, but I still want to clarify whether my letter will go straight to a recycle bin , if I send it by non-registered mail and without declared value? In my opinion, the main thing here is to send a letter of return. And another thing: do I need to send a letter to the actual or legal address?

4) Court settlement of the dispute.
4.1) each person participating in the case must prove the circumstances to which he refers as the basis of his claims and objections . proof is carried out by means of evidence, among which are attributed, in particular, written evidence. The evidence confirming the violation of the exclusive rights to a trademark (service mark) may include expert opinions , authorized bodies, and protocols for examining written evidence. Can this help in any way?

4.3) This is the only point where at least something is said about the ordinary citizen. But all the document templates still use the fields either for legal entities or for un.
disputes related to the protection of exclusive rights to the means of individualization of legal entities , goods, works , services and enterprises, the right to use the results of intellectual activity , etc. are considered by the arbitral tribunal regardless of whether the applicants are organizations, individual entrepreneurs, or citizens .
Properly filed a statement of claim in the appendix of a set of documents confirming the grounds to which the claimant refers refers to the arbitration court at the location or place of residence of the defendant.

Is it really impossible to protect our interests (to sue a domain for the Russian-speaking community), while not being a legal entity? If you register a legal entity, then the option of individualization of legal entities may be appropriate (see below). I understand that the work of archlinux is not (?), But is the result of intellectual activity. Then is it possible to prove that we are working, working, and some squatter receives advertising revenue, spoiling the impression of our good sign of individualization, and in general has nothing to do with us.

What are the grounds?

Individual

In general, the easiest way would be to file a lawsuit from an individual. But here is the problem in justifying the violation of rights. Yes, I contribute to the community, but where is the proof that under this nickname I? And that I'm not just some Vasya, who decided to scoop up the domain from another squatter. But in general, do I get any copyrights when I, for example, edit the arch linux wiki? Maybe they need to fix and on this basis demand to give the domain?

Pros - the easiest in the sense that you do not need to register any organizations.
cons - Where are the documents that I have to do with the project, and why exactly should I get the domain?

If we follow this method, then I imagine the situation in the following way: notarized screenshots from the pages of the Russian team of translators ArchWiki , ArchWiki editors activity statistics , Contribution from Agent0 who prove that agent0 invested a lot of its intellectual property in the project =). I also share a certified screenshot of the redemption application page and that advertising is running on the archlinux.ru domain and a message about the sale of the domain is displayed. I organize an examination of the fact that the project is not fake, has existed for a long time, is actively developing, is recognized by the community. I write a statement to the notary that I, as an individual, take responsibility for it, that I am the distributor under the name agent0, I show the notary that I can log in to myself, he assures me a letter (or a signature on it?).

Then I write a letter to the registrar's address: “In accordance with clause 9.1.5. Rules for registering domain names in .RU and . domains, please provide information about the admin, because they violate my intellectual property rights (or means of individualization?), Which is confirmed by the documents: a certified copy of the statement that I speak under the nickname agent0, certified proof of the participation of agent0 in the project (another certified copy of the screenshot?), an expert conclusion of the activity and prescription of the project. These admin will be used solely in order to protect their legal rights in court. "Well, after that, almost everything is clear.

Social organization

Since in all documents either a un or a legal person acts as a plaintiff, I thought about registration. Ip does not fit: I do nothing, but there will be a fuss with the reporting, and again, where is my attitude to archlinux.ru? So you need a legal entity of the type “public association of archlinux users”. I thought that the basis of the violation would be a means of individualization - the brand name. But they can refuse to register here, as there is already such a domain name (just a squatter). Again, you can make an expert conclusion that our project started much earlier than the squatter took our domain, and we have a direct relationship to this project, and require registration on the basis of an expert opinion.



Then I thought, why not make a more general organization like “community of supporters of open source software”. Then it would be possible for this legal person to represent the interests of many other projects (for example, linuxmint.ru also jumped in). In the west, there are several such organizations (FSF, SPI , SFLC , and others) that deal with legal and hosting assistance to STRs. We do not seem to have such, well, well, someone must create it. Public organization is a form of public association (non-profit organization). This, I think, is a good option and the most suitable form of a legal entity for our purposes.

If you choose this option, what evidence will be used? Logically, the “community of supporters of open source software” must prove that archlinux is an open source project (a notarized translation from the About Arch page?) And that the word arch linux is used as a means of individualizing specific representatives of a given public organization (specifically which documents? site or what?).

Or another scenario: everything is the same as what I wrote in the section with an individual, only here the organization would protect its member. That is, the participant (or several participants) of the orginization make intellectual property, has a means of individualization, and some squatter has no relation to us, but uses our sign.


Advantages - this would allow protecting similar disputes in the future
minuses - I’m worried that Wikipedia says “The legal capacity of a public association as a legal entity arises from the moment of state registration of this association”. It then turns out that squatters used to register a domain, and now it seems as if a domain is registered before a trademark, the domain will remain with the owner.
On the other hand, I saw a claim where the trademark was registered later than the domain, but the court allowed the claim. I assume that if the respondent argues, then it will be possible to appeal to the fact that our other means of individualization, the domain archlinux.org.ru, was registered before the captured archlinux.ru.

So far, the administrator of archlinux.org.ru has not made contact (I sent a letter asking for assistance to me and the possibility of speaking in court). And on the site itself there is no information for contact with the administration.

Representation of the defense organization

I read that community organizations can be international. Does this mean that the main department of organization is located in Russia, and smaller branches in other countries? Or is this the case when there is a non-profit organization in America and it wants to register its branch here?
I contacted the leader of the arch linux project, and he said that the project was under the legal protection of the American non-profit organization Software in the Public Interest . However, it seems this organization operates only in the United States. If it were possible to register a regional representation (or a branch, did not quite understand the subtleties of the difference), then we could defend the project on behalf of this organization here. Trademarks can be international, but the subtlety is that the trademark archlinux itself is not registered, but recognizable, which is written on the pages of the project below.

cons - There's just a fucking duty: 120,000 rubles. And a bunch of headaches with extracts from foreign criminals, apostilles, etc. It would then be easier to buy the domain. A lot of trouble with registration and documents (the rules of fair use of a trademark will have to be translated and certified). But it can be agreed with them that they themselves organize the Russian branch.
Pros - they protect the project, and the main domain of the project (archlinux.org) is registered much earlier. This can be a powerful argument.

Your tips?

That's how thoroughly I decided to take on this business. At this stage, I would like to consult with the community, so if you have any ideas, answers to my questions or advice, please write in the comments.

If you do not have an account on habrakhabr, you can write a comment on the forum archlinux.org.ru