The legal nature of domain names

The legal nature of domain names Irina A. Dolina Today there is no consensus of opinion about the legal nature of domain names, domain name’s legal relationships in Russian doctrine. The place of domain names in the system of civil legal relationships is not also determined. Some authors contend that domain name is the self-dependent means of individualization; the others believe that domain name is just one of the way how to put traditional means of individualization

into economic circulation. As U.L. Nemets notes in his thesis, “the legal relationships about domain names on the Internet belong to toward the intellectual property and to define more accurately to the one of its institution “The means of individualization of economic circulation participants and their products work, services”. Such a conclusion is based mainly on the fact that domain name’s legal relationships, infringe first of all on trademarks and brand names owner’s interests.

Moreover by analyzing the “The Trademark, Service Sign and Names of Places of Good’s Origin Act” of September 23, 1992 № 3520-I, with the modifications and additions made by the “About the Modifications and Additions in the Trademark, Service Sign and Names of Places of Good’s Origin Act” of December 11, 2002 №166,

U.L. Nemets made a conclusion that “the legislator had straight indicated, that this act regulates the Internet activity by using domain names (article 4). So the law currently in force confirms that the legal relationships about domain names on the Internet belong to the intellectual property and to the institution of means of individualization of economic circulation participants and their products, work, services”.

However by analyzing the resolution of domain names disputes legal practice or, more precisely, some of the court cases, concerned with using the Internet, we can see that such a legal practice is extremely ambiguous and contradictory today. There are a lot of reasons of such a complexity: the legal complication of the institution of intellectual property, the lack of the legal regulation of the Internet activity, the lack of the judge’s special professional skills in resolution of domain names

disputes. Analyzing the court cases, concerned with using the Internet, we must note that in such cases the judges examined the cases, as a matter of fact, connected with using the traditional means of individualization such as trademarks, which appeared in the system of addressing in Russian segment of the Internet. However in court cases it is a question about using the trademark “in the Internet in particular in domain name and in others methods of addressing”, but

not about the domain name as those, in other words as one of the ways of using the trademark in domain name. Consequently, the domain name may be used as one of the commercial effective form of using the traditional means of individualization protected by the legislate of exclusive rights for means of individualization, but it is important to distinguish ways and forms of using the traditional means of individualization from the means of individualization as those. So, in

Russian legislation the recognition of domain names as one of the ways of using the trademark occurs, but not the acknowledgment of uniformity of the domain name and the trademark and addition of legally protected means of individualization list. The only act which mentioned the record about the regulation of domain name legal relationships is “The Trademark, Service Sign and Names of Places of Good’s Origin

Act”. If we have a position “domain name is a trademark, used on the Internet”, we will lose sight of such objects, which are not trademarks: international non-patented names of pharmaceutical medications, the names of international intergovernmental organizations, personal names, geographical names and other geographical terms, the names of different objects of outward things (objects and subjects of law), etc. Consequently, a trademark can always be used in a domain name but

not each domain name can be trademark. So, the author’s opinions that “legal relationships about domain names on the Internet belong to the intellectual property, on account of the fact that such relationships infringe first of all on trademark owner’s interests seems contrary to fact. According to another point of view domain names are one of the ways of using traditional means of individualization in civil circulation. So they can not be rated as self-dependent means of individualization and be protected

as the traditional means of individualization. Some authors hold the opinion that domain name is one of the properties of documents, and identify the information on the Internet, but not goods. That is why the conclusion that domain name is analogous the trademark is incorrect. Actually the trademarks identify production, work or service, but domain name identify the information on the Internet. So using domain name similar to trademark could not be considered as bleach of exclusive

rights of trademark owner, because according to the act mentioned above, may be the usage of similar designation for identification in civil circulation of goods to which the trademark is registered, but not the information on the Internet. M.V. Batyanov and V. Kiselnikov consider that “in respect to civil legislation the right to have and use domain names must be qualified as a property rights, consisting in a capability of a natural or juridical person

which had registered domain name, to place the information resource on the Internet, access to which will be available by typing the composition on letters and numbers that form domain name. The Internet legal relationships are similar to the legal relationships in real life. In the Internet the subject’s of law behavior will be defined by the same norms of legislation as in real life but with the specification of virtual space.

As it is obvious from the foregoing, it is rather difficult to find the answer to the question about the legal nature of domain names. The problem is probably, in the try of scientists to find the answer taking into account already existing means of civil legal relationships regulations. It can not be applied in such legal relationships, because we face a new object of civil rights, which did not exist before the Internet was introduced. In my opinion, there is an argument to consider that

domain name is an assumed name which is used by its owner to obtain his rights to create and use the website or the Internet page. On account of the domain name specificity we will divide our theory “domain name as a personal nonproperty right” into two parts. In the first part we will make a research of the object of determination of domain name as a personal nonproperty right of the natural person, in the second - a research of the object of determination of

domain name as a personal nonproperty right of the juridical person. 1. Domain name as a personal nonproperty right of the natural person. The personal nonproperty rights, which are inalienable from the person, are enumeration in the article 150 of Civil code of Russian Federation. There is mentioned the right to have a name among these rights. Let’s make analyses of the object of the domain name according to the features of civil nonproperty

rights. Non-material nature of the personal rights becomes apparent in the fact that they can not be evaluating (in money equivalent). Domain name can not be an object in civil bargains; it can not be sailed, can not be inherited in temporary use, and can not be left as a deposit, because the domain name is the basis of the personal status and it possesses a certain value for the person. The exposure of the person and its development is an important feature of the personal nonproperty

rights. Domain name is used for individualization the information massive and the person individualization who place this information on the Internet. This is the main feature of domain names-it individualizes the information (can be a mean of addressing) and individualizes the subject of law at the same time. It is mentioned in the article 150 of Civil code of Russian Federation that non-material goods can not be inherited from one person to another.

Domain name can not be transfered from one person to another because in this situation it will lose its value to individualize the subject of law on the Internet. The personal nonproperty rights can arise (or end) in the presence of certain events in consequence of legal acts or by the policy of different agencies. It is mentioned in the article 150 of Civil code of

Russian Federation that the personal nonproperty rights may belong to the person from birth. The most part of the personal nonproperty rights ends with the dearth of its bearer. So, the domain name right belongs to everyone from birth and loses its legal value with the dearth of its owner. The subjective civil law arises at the moment of its appropriation. To arise a domain name right it is necessary to make its registration.

So the right to have a name is a personal, individual right of the citizens, which constitute the basis of the personal status, and this right couldn’t be evaluated because it possesses a certain value for the person. The substance of domain name is necessary to reveal according to which institutions of civil law it is used, for example, in the Copyright act. It gives the common conception of “citizen name” in the article 19 of

Civil code of Russian Federation. Consequently 1) the domain name right couldn’t relate to the result of intellectual activity; 2) the legal regulation of domain names must be realized according to the article 19 of Civil code of Russian Federation despite the fact that the domain name right may belong to the juridical person. 2. Domain name as a personal nonproperty right of the juridical person. According to Russian legislation the juridical person is a will possessing and capable person.

Entering in legal relationships as a self-dependent subject the juridical person realizes its juridical personality by appearing its volition, obtains and realizes material, corporative and other rights and responsibilities, and accounts its acts. As Dernburg noticed evenly, the juridical people have not just a property juridical personality; but also they have a private of juridical personality as a whole, consequently they have the similar rights and responsibilities as the natural persons so far as it is

permitted by their properties and answer their purposes. The juridical persons in Russian Federation may obtain a great number of property rights and responsibilities, including nonproperty executive rights such as right on brand names, right on the results of creative activity: copyright, patent etc. The legislator put such personal nonproperty rights as the right to have a name, copyright, the right on defense of business reputation in the article 150 of

Civil code of Russian Federation put on a par with such an un-material properties as life, health, dignity, good name. So the legislator doesn’t separate such a conceptions and do not separate the subjects of law which can obtain these rights-natural or juridical person. According to it and by analyzing the article 150 of Civil code of Russian Federation we can consider that the juridical person can also have the domain

name rights. The juridical person can obtain the subjective rights if it is not unauthorized and does not contradict the special juridical personality of the juridical person. According to the article 128 of Civil code of Russian Federation non-material properties are the objects of the civil rights. So the subjective right is a capability and security of one's behavior.

As regards the honor, right to have a name and business reputation, the objective right doesn't determine their holder's behavior. The law only provide for the defence of the honor, right to have a name and business reputation when these rights are broken, and the holder of these rights decide how to use the means of defence of these rights. So it is correctly to talk, for example about the subjective right of defence of the honor and dignity a natural person and the subjective right of defence of the right

to have a name and business reputation or a juridical person. Consequently the object of the personal non-property right is the subjective rights which are based on the defence of these rights. According to the conclusion above, we can say that the right to have a domain name, as a personal non-property right is the subjective right which arises on the occasion of the right to have a name in view of the article 150 of

Civil code of Russian Federation, concerned the personality of its holder (for the natural person) and with the right of business reputation (for the juridical person), and directed to exposure and development of the holder's individualization which also have special foundation of its beginnings and cessation in the view of the legislation. Literature: 1. M.V. Batyanov and I.V. Kiselnikov. Domain name as an object of copyright.

The release of the VIIIth conference of representative’s regional scientific research nets RELAN-2001, http://www.ict.edu.ru; 2. U.Gulbin. Do we preserve an Internet? // IP. Copyrights №9, 2003; 3. Dernburg. The civil law of German empire and Prussia, 3d edition, volume 1. 1906; 4. M.N. Maleina. The personal nonproperty rights of the citizen: conception, realization, and defense

M.:M3 Press. 2000 c.13; 5. Z.U.Milutin. The correlation of domain names and means of individualization [Electronic resource]: Diss :12.00.03 M.:RGB,2005 6. U.L. Nemets. Domain name in the Internet as a new object in intellectual property. [Electronic resource]: Diss :12.00.03 M.:RGB,2005; 7. I.V.Nevzorov, The legal nature of domain names and its correlation with the intellectual property objects. Legal help system

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