Legal aspects of domain space

Domain as an object of law is absent in the Civil Code of the Russian Federation, it is not the result of intellectual activity (object of exclusive rights), is not a thing or other property, the legislator has not established any special legal norms on the conditions and subjects of "domain" legal relations, or special procedures resolve disputes related to domains. Lawyers often identify domain names with trademarks. Nevertheless, domain names have a different legal nature, because they do not individualize either products or services. The domain carries marketing value for its owner and is its intangible asset. Consider some of the legal aspects of domain space in Russia and the world.

Domain separation in Russia

At the end of 2016, the .RU domain zone ranks ninth in the top ten world rankings after such domain zones as .com, .net, .de, .uk, .org. As of April 2017, the total number of .RU domains is 5,528,092. The RuNet is growing, but at the same time, the number of cases of dividing the domains is growing. Domain division means denying the right to use a domain name, as a result of which the site is inaccessible to Internet users. Consider what is the procedure of domain division in Russia and other issues of the domain space.
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In Russia, the procedure for administering domains in .ru spaces, as well as .su, ., etc., is established by the autonomous non-profit organization “Coordination Center for the National Internet Domain” (hereinafter “CC”) ( www.cctld.ru ), which compiled the Registration Rules domain names in zones .RU and. The Russian Federation (further "Rules"). Directly the registration of domain names in domains .RU and / or. The Russian Federation is dealt with by registrars - legal entities accredited by CC. An administrator is a person in whose name a domain name is registered. Often, the domain administrator is also the owner of the site hosted on it, uploading content to it and determining the procedure for using the site and information posted on it for users.

There are two concepts in the Rules related to the delimitation of a domain: termination of domain delegation and cancellation of domain registration .

Based on the Rules, the termination does not imply the exclusion of information on the domain name from the domain name registry, so the delegation can be resumed if the reason for the division is resolved. In other words, it is a kind of suspension of domain delegation.

For the following reasons, domain delegation may be terminated (clause 5 of the Rules):

➥ after the expiration of the domain name registration (30 days of the preemptive renewal period after the expiration of the registration period, make it possible to retain the domain and avoid the complete exclusion of the domain from the registry, section 4.5 of the Rules);
➥ on the basis of a written decision of the head of the body carrying out operational investigative activities (FSB, Ministry of Internal Affairs, customs authorities, foreign intelligence services and others );
➥ if unreliable information about the administrator in the Registry is detected or if the administrator fails to provide documents confirming this information at the Registrar's request within the prescribed period (paragraphs 9.3.7–9.3.8 of the Rules);
➥ by a reasoned appeal of the competent organization, if the site using a particular domain:
- distributes pornographic images of minors;
- is engaged in phishing (unauthorized access to information systems of third parties);
- manages the botnet (spreading and managing malware).

The list of competent organizations is published on the KC website. Among them are: Roskomnadzor, the Central Bank of the Russian Federation, the Safe Internet League, Kaspersky Lab, the Sberbank subsidiary - LLC "Safe Information Zone" (LLC "Bizon") and others. Thus, upon the request of these organizations, the domain can be divided by the court procedure. Domain delegation can be restored at the request of the relevant competent organization after the elimination of the reason for blocking.

The procedure for the separation of applications from the security authorities or the competent organization is as follows. The registrar receives a request for separation, notifies the domain administrator. If the administrator has not responded within the terms established by the contract, the registrar stops domain delegation for such administrator.

Roskomnadzor actively initiates the division of domain names in .RU and . zones along the line “child pornography”. In addition, as a result of the cooperation of Roskomnadzor with Rospotrebnadzor and the reg.ru domain name registrar Reg.ru, the domain of an online store selling DNP (DNP, DNF, 2.4 Dinitrophenol), recognized by experts of Rospotrebnadzor as dangerous for life and health, was delineated. That is, despite the fact that the Rules deal only with the domain sharing of sites distributing pornographic images, phishing, botnets, as it seems, Roskomnadzor, interacting with other government agencies, can achieve domain separation for other reasons.

In the summer of 2017, at the initiative of Roskomnadzor, without any valid reason , the delegation of the domain of the site to the alternative public project “Ask Putin” (zadat-vopros-putinu.ru) was stopped. The agency referred to the fact that on June 15, a “direct line with the President of the Russian Federation” was to be held, the address of the official website of the event was the domain moskva-putinu.ru, and the website zadat-vopros-putinu.ru could lead users astray.

Cancellation of a domain name registration means exclusion of information about a domain name from the domain name registry, in other words, complete “destruction” of a domain name.

Registration can be canceled in the following cases (clause 8.1 of the CC Rules):

➥ if the registration was made in violation of the technical requirements for domain names in force at the time of registration;
➥ if the registration of the domain name was made in violation of the Rules in effect at the time of registration, and was associated with unscrupulous actions of the administrator;
➥ at the end of the preemptive renewal period (the domain administrator is obliged to send a renewal request to the registrar no earlier than 60 days before the expiration of the registration period, see clause 4.4 of the Rules);
➥ at the request of the administrator;
➥ on the basis of a judicial act that has entered into legal force;
➥ if the administrator terminates the contract with the registrar who maintains the information on the domain name;
➥ when the administrator prohibits further processing of his personal data, produced in accordance with the Rules.

For example, the Court of Intellectual Property Rights, which considered the dispute over the claim of the copyright holder of the CHRISTINA trademark to the administrators of the domain name www.christinashop.ru , recognized the actions of the administrators as a violation of the rights to the trademark and prohibited the use of this domain name.

The Arbitration Court of St. Petersburg and the Leningrad Region ordered the Petersburger who registered the domain tiguan.ru to transfer it to the German concern Volkswagen and pay compensation of 250 thousand rubles for violating the rights of the claimant to the Tiguan trademark, and also forbade him to use this brand in the domain name.

Stop list of the Coordination Center

According to clause 3.1.1 of the CK Rules, the domain name must contain no more than 63 characters. This number of characters can contain words of obscene content, obscene language, etc. In order to avoid registration of such domain names, KC forms a stop list.

We are talking about signs that contradict public interests, principles of humanity and morality (in particular, obscene words, anti-humane appeals, offending human dignity or religious feelings, etc.). In addition, notations are made to the stop list based on information received from competent organizations (the above mentioned organizations were mentioned) that the indicated notations were generated automatically for the purpose of spreading malicious programs.

Another category of symbols, which appeared relatively recently in the stop list, is contradictory. These are the signs used to address the site, to which, in accordance with the Federal Law “On Information, Information Technologies and Protection of Information” (the “ Law on Information ”), measures have been taken to permanently restrict access. Decisions on the recognition of sites as infringers of copyright (related) rights (see Art. 15.2 of the Law on Information) are far ambiguous and bear direct damage to the interests of the owners of such sites and their users, as well as to authors and other rightholders who place their works and their content in free unlimited access.

Spamhaus

Another, so to speak, threat of “blocking” a domain may be the inclusion of domains in the global spam lists.

Spamhaus Project is an international non-profit organization that tracks spam and its associated cyber threats, such as phishing, malware, and botnets. This organization also quickly provides accurate information about threats to Internet providers, corporations and security services in real time, working with law enforcement agencies to identify the sources of spam and malware spread throughout the world.

A spamhouse along with other functions forms a real-time database of domains found in spam messages ( Domain Block List or DBL ). A mail server software that can scan the contents of an email for a URI uses a DBL to identify, classify, or reject spam containing domain names listed in the spam list of the DBL.

DBL is a fully automated system, often innocent domain names are added to the block list. On its website, Spamhouse does not disclose the criteria for making a domain in the DBL.

If your domain is in the Spamhaus block list, you should first make sure that the domain is really blocked by accessing spamhaus.org/lookup. If the search result indicates that the domain is blocked, follow the further instructions for unlocking on the Spamhouse website.

Transfer domain to another registrar according to ICANN rules

In order to protect your domain and complicate the process of razdeleggirovaniya in Russia, often Russian sites change the registrar from national to international.

At the global level, the IANA (Internet Assigned Numbers Authority, the Authorized Internet Number Distribution Organization) coordinates the work of the top-level domains (gTLDs, ccTLDs) and day-to-day administration of the Domain Name System (DNS). IANA is a division of ICANN (Internet Corporation for Assigned Names and Numbers, the Internet Corporation for Assigned Names and Numbering), which is a non-profit corporation that ensures the stable and secure operation of systems of unique Internet identifiers (domains, IP addresses). The Russian CC is also a member of ICANN.

How can I transfer a gTLD level domain name to another registrar in accordance with ICANN rules? gTLD (generic Top-Level Domain - generic top-level domain) is a top-level domain supported by the IANA (.edu, .com, .net, .org, .gov, .mil, .int). On this account there is a policy on the transfer .

To initiate the procedure for transferring your domain to the gTLD level, you first need to send the Standardized form for receiving registrars to the new registrar. In addition to this, it is also necessary to fill out and forward the Transfer Request Request Form between registrars to your present registrar.

The registrar is obliged to reject the transfer request only in the following specific cases:

➥ the Uniform Domain-Name Dispute Resolution Policy (Uniform Domain-Name Dispute Resolution Policy) procedure is implemented for the domain name; more detail on this below;
➥ in respect of the domain name, a court ruling of the competent jurisdiction applies;
➥ with respect to the domain name, the TDRP procedure (Transfer Dispute Resolution Policy) is carried out in case of change of registrars;
➥ with respect to the domain name, the URS procedure is performed or the URS suspension (Unifrom Rapid Suspension);
➥ a 60-day lock is valid for a domain name due to a change in ownership of the domain.

The registrar may reject the transfer request only in the following specific cases:

➥ signs of fraud;
➥ justified disagreement regarding the identity of the party authorizing the transfer;
➥ use of the domain name has been suspended due to debts for the previous registration period (including refund of payment via credit card);
➥ directly expressed written objection from the owner of the domain name;
➥ the domain name is “blocked”, unless the administrator is given the opportunity to unlock the domain name before it sends a transfer request;
➥ 60 days have not yet expired from the date of the initial registration of the domain name;
➥ 60 days have not yet expired from the date of the previous transfer of the domain name.

Your registrar is obliged to indicate the reason for the refusal in the requested transfer, unless the refusal is obligatory. You can file a formal claim for transfer to ICANN if you consider the denial of transfer to be unfair.

Arbitration Proceedings for Domains by UDRP Rules

There is such an unpleasant phenomenon for the domain world as cybersquatting (from the English. Cybersquatting) or "domain capture". This is the general name of the unfair registration of the name of someone else's trademark in the domain name. Often this takes the form of the purchase of domain names consonant with the names of well-known companies, geographical names, names of goods and other recognizable things, with a view to their further resale or advertising. Resale often occurs at auctions (for example, sedo.com/us , nic.ru/auction/#buying ).

Fortunately, to resolve such disputes, there is an UDRP (Uniform Domain-Name Dispute Resolution Policy) procedure, which was developed by the World Intellectual Property Organization (WIPO) and adopted by ICANN in 1999.

The UDRP procedure is available only for generic top-level gTLDs, as well as national top-level domains ccTLDs, contracted between accredited registrars and ICANN. The list of such registrars is published here , from Russia at the moment - 10 registrars. Among them, for example, Reg.ru, which in its offer contract also indicated that the customer (future domain administrator) agrees to follow the processes and execute the UDRP procedures.

According to the UDRP rules, arbitration centers accredited by ICANN resolve disputes in the domain name domain. Among the arbitration centers: the Asian Center for Resolution of Domain Disputes (Asian Domain Name Dispute Resolution Center), the National Arbitration Forum (The National Arbitration Forum), the World Intellectual Property Organization Center, etc. They consider cases on the basis of reservations, contained in registration agreements between registrars and domain name administrators. However, for example, the Russian registrar Reg.ru, despite the fact that the agreement provides for the UDRP procedure, still disputes arising from the agreement, placed in the jurisdiction of the Moscow Arbitration Court. When applying such a mechanism for resolving domain disputes, decisions of national courts are then executed by registrars accredited by ICANN on the basis of paragraph 3 of the UDRP.

As a rule, about 80% of cases involving domain names are won by trademark owners.

For example, in 2017, the Russian service for job search and staff HeadHunter won a case from a Russian cybersquatter who registered a domain name similar to the Headhunter trademark (the case was considered by the WIPO Arbitration Center).

Using the UDRP procedure, Airbnb acquired the domain airbnbnow.com, whose owner seems to have used it for phishing. The site itself, the content, colors and logo very much resembled the site of the Airbnb itself. From other international disputes, the Museum and the Vincent Van Gogh Foundation for the Arts defended the domain vangoghmuseum.com.

Thus, the proceedings under the UDRP rules are not limited to commercial disputes. Non-profit organizations also use this effective administrative tool against unfair domain name registration.

The UDRP procedure is distinguished by its efficiency and speed, as it can occur completely online. It is important to note that the special arbitration centers accredited by ICANN do not resolve claims for damages and do not pass injunctions.

After a decision is made by an arbitration center, an ICANN-accredited registrar who has agreed to abide by the UDRP rules will execute a decision , for example, on the transfer of the corresponding domain name to the trademark owner or the revocation of the domain name. At the same time, any of the parties to the dispute has the right to refer the dispute to a court of competent jurisdiction for an independent decision (ie, to national courts), which is rarely the case in practice.

The criteria set out in the UDRP policy can be applied by Russian courts. The Presidium of the Intellectual Property Court of the Russian Federation indicated that in case of disputes over domain names, the courts may use the provisions formulated in the UDRP when considering issues of bad faith of a person participating in a case.

Conclusion

Choosing a domain name has become an important business decision, because now it’s hard to imagine a company without a website. Each company invests significant resources in designing, securing its site and driving traffic to create customer loyalty and trust in its brands. However, these investments can be undermined if a domain name is split, spam-listed or malicious attackers register a similar domain.

To protect your domain, it is very important to choose the right domain name so that it does not violate any law or anyone’s rights. You should check if a trademark is registered with a name similar to your newly created domain in order to avoid possible risks. Another important choice is the choice of a registrar. Specify whether the registrar provides additional authentication and authorization services for changing the domain name or transferring the domain to another registrar, what are the terms of registration. Do not forget to update your contact information with the registrar in the event of a change in staff. Also, make sure that the registrar can easily contact you to resolve disputes quickly.