How to recover a stolen domain through WIPO arbitration. Step-by-step instruction
So, your domain has been stolen. You discovered this either in the morning, when you checked your email on your smartphone, or in the evening, when you saw someone else’s ads on your site, then you went into the admin area, deciding that the site was hacked, but you didn’t find the ad code there, and you realized that DNS was rewritten to another server…
You experience a whole gamut of feelings. Rage, because you are going to immediately punish the scammers. Fear, because in the few hours that you think the site will be in their hands, they can fill it with junk, which will fall into the index of search engines. Perplexity, because you do not understand how they managed to do it.
You immediately write to the registrar technical support and get an answer that the complaint has been received and will be considered in a timely manner.
An hour passes, another, but no answer. You call the hotline, where you are told that lawyers are considering your problem, and will give an answer no later than tomorrow.
')
You are shocked, you need to connect you with the leadership, threaten all earthly and heavenly punishments, shout about the importance of your project and millions of deceived users, but in the end agree to wait until the morning.
By the evening of the next day, you will receive a message stating that the domain is blocked and you need to contact the police on this issue.
Tired of the operas, having heard about domains, DNS-s, hosting and other strange things and realizing that your business is somehow connected with computers, trying to send you to the management of "K", but in the end still forced to accept your statement. But you are also going to the “K” office, and in a month you receive orders from both instances about the refusal to initiate a criminal case.
Fraudsters behave arrogantly and seem to fear nothing. They continue to advertise on your site and offer you to pay a decent amount for its return.
In the meantime, “experts” from the forums advise you to contact Roskomnadzor, the Presidential Administration, ICAN, the media, and tell you with skill how they are obliged to help you.
However, there are only two real ways to return a domain. If it is registered in “Russian” domain zones: .ru, . or .su - go to a Russian court, and if both parties are organizations or individual entrepreneurs, then to arbitration.
If the domain is “foreign,” then there is only one way out - to sue the arbitration of the World Intellectual Property Organization (WIPO, eng. World Intellectual Property Organization, WIPO).
This is the only body that can provide real assistance in returning a domain .
His competence includes the resolution of questions about the contradictions between the rights of holders of trademarks and domains. Simply put, if you have a registered trademark, then you apply to the WIPO Arbitration and by its decision a domain that is confusingly similar to your sign is transferred to you or its registration is canceled.
Therefore, if you have a trademark, you just have to submit it to the arbitrators and justify the defendant’s lack of legal interest in using the domain.
But what if you did not think in advance about his registration?
Especially for such cases, WIPO arbitrators apply the concept of an unregistered trademark. You can prove its existence if you have owned the site for a long time, and it was visited by a large number of people who perceived you as a person providing them with services or selling goods.
The time of possession of the site is proved using the WHOIS service or a letter from the registrar.
To prove high attendance, you need to provide arbitration with screenshots from analytics systems. It is better to use Google Analytics, but you can, of course, Yandex Metrics or other services.
There are no specific figures, at which the attendance of the site could be considered high. For example, the minimum number with which, as I know, it was possible to return a domain, was two million visits in four years.
When proving the presence of an unregistered mark, it is necessary to take into account at least two features. First, “descriptive” designations are considered as trademarks only if it is proved that they have acquired “distinctiveness”.
In other words, the owner of the domain, in the title of which there is the word “vilka”, selling the cutlery that he produces through the site, will be able to prove that he has the right to an unregistered trademark only if he confirms that this word is a result of prolonged use. in the minds of consumers it became clearly associated with its products and is no longer viewed by them simply as the name of the product.
But a theater studio offering its services on a website with the same address will not have a similar problem, since the word “vilka” is not a description of what artists are doing.
And, secondly, a trademark is always used for commercial activity, therefore, those who did not bother to register it in time, will need to prove to arbitration that with the help of his website he made a profit or, in any case, tried to do it.
For this, you can use screenshots from personal accounts of advertising systems, agreements with advertisers, etc.
And now the promised step by step instructions.
1. Before filing a claim, you must pay a fee of $ 1500 if you want one arbitrator to consider the claim. But if the other side requests the consideration of the case as part of the three arbitrators, you will need to pay another $ 500. Payment is possible by credit card through the WIPO website by specifying the domain name.
2. Then apply through the form on the website www3.wipo.int/amc-forms/en/udrp/eudrpcomplaint.jsp or send it by e-mail to WIPO. It is, of course, easier to do this through the form, because all the required fields are provided there in advance.
In it you specify:
It is not recommended to write too much about how exactly the domain was stolen, about the baseness and cunning of the defendant, about the importance of their project and generally about things that have no legal significance for this dispute. This will immediately give you an unprofessional who does not understand to whom and why he writes.
The application is written in the language of the registration agreement posted on the website of the current registrar. That is, if you were lucky and the registrar turned out to be Russian, then the clerical work will be conducted in Russian. If not, get ready to write in English.
The application must include documents and screenshots with the information to which you refer:
All important information must be provided in together with the statement of claim at the first appeal. Arbitration is very bad for an additional document that you want to provide later. In extreme cases, their appearance should be seriously justified.
3. The decision on whether a statement will be made must be made within 5 days. The huge advantage of WIPO arbitration is that the domain is immediately blocked after the application is submitted. WIPO also asks the registrar for the contacts and the name of the domain owner, although the plaintiff does not provide this information in all cases.
If there are flaws in the application, you are given another 5 days to correct them.
4. Further movement of the case depends on the actions of the defendant. As a rule, there is no fierce resistance on his part, because if a domain was stolen by professional hackers, there’s no point in fighting for one stolen website.
Usually they do not respond to claims, do not participate in the process, and as a result you get your domain.
But if a domain is very dear to a hacker, then it cannot be excluded that a professional lawyer will be hired by the respondent, therefore you must be prepared to respond to legal arguments, write reviews and additions to your application.
The whole process, starting with filing a claim and ending with the return of the domain, takes on average about 4 months, after which the arbitration makes a decision.
5. With this solution, you contact the registrar who has the domain. If the registrar is familiar with this procedure, the transfer to your account takes approximately 10 business days, and otherwise this process may be delayed.
Take care of your usernames and passwords, do not fall for the tricks of social engineering and let this instruction never come in handy.
You experience a whole gamut of feelings. Rage, because you are going to immediately punish the scammers. Fear, because in the few hours that you think the site will be in their hands, they can fill it with junk, which will fall into the index of search engines. Perplexity, because you do not understand how they managed to do it.
You immediately write to the registrar technical support and get an answer that the complaint has been received and will be considered in a timely manner.
An hour passes, another, but no answer. You call the hotline, where you are told that lawyers are considering your problem, and will give an answer no later than tomorrow.
')
You are shocked, you need to connect you with the leadership, threaten all earthly and heavenly punishments, shout about the importance of your project and millions of deceived users, but in the end agree to wait until the morning.
By the evening of the next day, you will receive a message stating that the domain is blocked and you need to contact the police on this issue.
Tired of the operas, having heard about domains, DNS-s, hosting and other strange things and realizing that your business is somehow connected with computers, trying to send you to the management of "K", but in the end still forced to accept your statement. But you are also going to the “K” office, and in a month you receive orders from both instances about the refusal to initiate a criminal case.
Fraudsters behave arrogantly and seem to fear nothing. They continue to advertise on your site and offer you to pay a decent amount for its return.
In the meantime, “experts” from the forums advise you to contact Roskomnadzor, the Presidential Administration, ICAN, the media, and tell you with skill how they are obliged to help you.
However, there are only two real ways to return a domain. If it is registered in “Russian” domain zones: .ru, . or .su - go to a Russian court, and if both parties are organizations or individual entrepreneurs, then to arbitration.
If the domain is “foreign,” then there is only one way out - to sue the arbitration of the World Intellectual Property Organization (WIPO, eng. World Intellectual Property Organization, WIPO).
This is the only body that can provide real assistance in returning a domain .
His competence includes the resolution of questions about the contradictions between the rights of holders of trademarks and domains. Simply put, if you have a registered trademark, then you apply to the WIPO Arbitration and by its decision a domain that is confusingly similar to your sign is transferred to you or its registration is canceled.
Therefore, if you have a trademark, you just have to submit it to the arbitrators and justify the defendant’s lack of legal interest in using the domain.
But what if you did not think in advance about his registration?
Especially for such cases, WIPO arbitrators apply the concept of an unregistered trademark. You can prove its existence if you have owned the site for a long time, and it was visited by a large number of people who perceived you as a person providing them with services or selling goods.
The time of possession of the site is proved using the WHOIS service or a letter from the registrar.
To prove high attendance, you need to provide arbitration with screenshots from analytics systems. It is better to use Google Analytics, but you can, of course, Yandex Metrics or other services.
There are no specific figures, at which the attendance of the site could be considered high. For example, the minimum number with which, as I know, it was possible to return a domain, was two million visits in four years.
When proving the presence of an unregistered mark, it is necessary to take into account at least two features. First, “descriptive” designations are considered as trademarks only if it is proved that they have acquired “distinctiveness”.
In other words, the owner of the domain, in the title of which there is the word “vilka”, selling the cutlery that he produces through the site, will be able to prove that he has the right to an unregistered trademark only if he confirms that this word is a result of prolonged use. in the minds of consumers it became clearly associated with its products and is no longer viewed by them simply as the name of the product.
But a theater studio offering its services on a website with the same address will not have a similar problem, since the word “vilka” is not a description of what artists are doing.
And, secondly, a trademark is always used for commercial activity, therefore, those who did not bother to register it in time, will need to prove to arbitration that with the help of his website he made a profit or, in any case, tried to do it.
For this, you can use screenshots from personal accounts of advertising systems, agreements with advertisers, etc.
And now the promised step by step instructions.
1. Before filing a claim, you must pay a fee of $ 1500 if you want one arbitrator to consider the claim. But if the other side requests the consideration of the case as part of the three arbitrators, you will need to pay another $ 500. Payment is possible by credit card through the WIPO website by specifying the domain name.
2. Then apply through the form on the website www3.wipo.int/amc-forms/en/udrp/eudrpcomplaint.jsp or send it by e-mail to WIPO. It is, of course, easier to do this through the form, because all the required fields are provided there in advance.
In it you specify:
- that you have the right to an unregistered trademark and provide evidence of this,
- that the defendant has no rights and legitimate interests in using the domain,
- that he acts in bad faith, that is, registered him with unfair purpose.
It is not recommended to write too much about how exactly the domain was stolen, about the baseness and cunning of the defendant, about the importance of their project and generally about things that have no legal significance for this dispute. This will immediately give you an unprofessional who does not understand to whom and why he writes.
The application is written in the language of the registration agreement posted on the website of the current registrar. That is, if you were lucky and the registrar turned out to be Russian, then the clerical work will be conducted in Russian. If not, get ready to write in English.
The application must include documents and screenshots with the information to which you refer:
- screenshot of whois-service with the indication of the new owner, even if his name is Private Whois,
- a certificate from the registrar stating that you were the owner of the domain before the abduction,
- screenshot from Google Analytics account or other statistics system,
- screenshots from personal offices of advertising systems,
- screenshots from archive.org if you refer to the history of your site.
All important information must be provided in together with the statement of claim at the first appeal. Arbitration is very bad for an additional document that you want to provide later. In extreme cases, their appearance should be seriously justified.
3. The decision on whether a statement will be made must be made within 5 days. The huge advantage of WIPO arbitration is that the domain is immediately blocked after the application is submitted. WIPO also asks the registrar for the contacts and the name of the domain owner, although the plaintiff does not provide this information in all cases.
If there are flaws in the application, you are given another 5 days to correct them.
4. Further movement of the case depends on the actions of the defendant. As a rule, there is no fierce resistance on his part, because if a domain was stolen by professional hackers, there’s no point in fighting for one stolen website.
Usually they do not respond to claims, do not participate in the process, and as a result you get your domain.
But if a domain is very dear to a hacker, then it cannot be excluded that a professional lawyer will be hired by the respondent, therefore you must be prepared to respond to legal arguments, write reviews and additions to your application.
The whole process, starting with filing a claim and ending with the return of the domain, takes on average about 4 months, after which the arbitration makes a decision.
5. With this solution, you contact the registrar who has the domain. If the registrar is familiar with this procedure, the transfer to your account takes approximately 10 business days, and otherwise this process may be delayed.
Take care of your usernames and passwords, do not fall for the tricks of social engineering and let this instruction never come in handy.
Source: https://habr.com/ru/post/346906/
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