Before 2000, domains were registered in Russia by RosNIIROS (Russia Scientific Research Institute for Development of Social Networks) only. In 2000, a decision was taken to implement the registration system for second-level domains in the RU domain (via accredited registrars), for which purpose RosNIIROS separated RU-CENTER from its structure and transferred the functions relating to the second-level domain registration to it. In 2004, the pilot operation period of the distributed registration system was completed. At present more than 10 registrars effect domain registrations in the RU zone, and almost 70% of the registrations are effected by RU-CENTER.
Currently, there is no single definition of domain name. Federal Law No. 149 “On Information, Informational Technologies and the Protection of Information” defines a domain name as “a designation made by symbols which is intended for addressing sites on the Internet for the purpose of providing access to the information placed on the Internet”. The Coordination Center of the Internet National Domain (the official registrar of domains in .RU and Cyrillic .РФ) provides somewhat other definition of a domain name, as based on the technical aspect, in the Rules for registration of national domain names, namely “a domain name is a symbolic designation intended for network addressing”. A number of researchers, on the basis of the individualizing specificity of a domain name, suggest to understand it as “a means of individualization provided as a unique symbolic designation intended for addressing and individualizing an information resource on the Internet”.
This definition stems from the immaterial character of a domain name. Owing to domain names, it becomes possible to distinguish web-sites of some participants of the Internet community from those of other participants of this community. And, since a domain name may form a sale or rent object and, as such, is involved in the civil turnover, it has a certain property value. Furthermore, a domain name, similarly to the other means of individualization, is a means of protection against competitors’ unfair efforts to use the popularity of a web-site designated by it, and, thus, prevent users from being confused in respect of its real owner. This is especially important for preventing possible parasitizing on the reputation of a well-publicized domain name through registration of a confusingly similar Internet-resource.
It is known that two methods of forming domain names exist: by the geographic criterion (two letters indicating a country are added, e.g., “ru” − Russia, “tm” – Turkmenistan, etc.) or by the field of activity (three or more letters of the English designation of a field of activity are added, e.g., “org” – non-profit organizations, “com” – profit-making organizations, “team” – for teams, “edu” – educational organizations).
A specific feature of the existing system of domain name registration is that this procedure may be effected irrespective of the fact whether an applicant has registered trade names or trademarks, and now it is possible in respect of 37 symbols only – Latin letters, figures and hyphen. However, latest technical trends rise the necessity of forming domain names with the use of other alphabets, apart from the Roman one, in particular Russian, Arabic, Chinese or Jewish.
At present, economic entities are ready to pay rather big money for the possible use of a certain designation as an Internet-resource address. As results of leading world auctions show, sales of domain names are a very profitable business. The following records in the field of domain name assignments are known in the secondary domain market: Sex.com – $12 million (2006), Business.com – $7.5 million (1999), AsSeenOnTv.com – more than $5 million (2000), Korea.com – $5 million (2000), etc. Not only a domain name itself, but also its domain zone contribute to successful sales. Therefore, demand may differ from one national domain zone to another.
Once, for example, the small country Tuvalu being the owner of the national domain TV (advantageous name for television broadcasters) assigned the right to register domain names in this zone for 12 years for $50 million and, due to this, became able to make the contribution to the UN Organization and become its member. The domain zone AG of Antigua and Barbuda is also turned to be very profitable, since “AG” is the abbreviation of the German word “Aktiengesellschaft” (joint-stock company), and in this connection German joint-stock companies readily register corresponding domain names with the use of the AG top level domain. The Columbia national domain CO is attractive for British-US companies, since CO may be considered as the abbreviation of the word “company”. Accordingly, the Turkmen national domain ТМ is attractive for trademark owners, since “TM” is the abbreviation of the word “Trademark” widely used in commercial practices.
In this respect, the example of the island state Tokelau (three atolls with the total surface area of 10 sq. kilometers with the population about 1,500, forming an overseas territory of New Zealand). Recently, the economy of these islands grows exclusively due to the business of registering domains in the “TK” zone. In particular, more than 1.6 million names in 2007, and their number grows by about 10,000 every day. This new business has increased the country’s GDP by 10%, and many people have bought personal computers and got access to the Internet.
Nowadays, the business community and the whole intellectual world practically cannot go without domain names individualizing their activities. They have become an organic component of any business, indispensable for business communication, deriving profits, becoming widely known, etc.
It is known that a domain name fulfills not only the technical task of being the address of an information resource, but also the task of being a means of individualization similar to a trademark by its functions. In particular, they, similarly to trademarks, facilitate promotion of goods and services of a domain owner at the market. This specific feature has not been overlooked by enterprising people who have started registering domain names more often, sometimes combining this procedure with registration of trademarks. Since, unlike registration of trademarks, domain names may be registered far quicker and cheaper, the popularity of this kind of information resource is growing steadily.
At the same time, the number of judicial disputes concerning domain names and trademarks, trade names is increased. As a result, the necessity of developing a more or less clear approach to the problem of the relation between rights to domains and rights to the above-said means of individualization has appeared. After generalizing the available information has shown that two diametrically opposite approaches to this problem exist.
The first one consists in establishing the priority of rights to a trademark or a trade name over rights to a domain name. However, this approach has certain disadvantages, since a domain name has the supranational character, while a trademark is registered for applying in the territory of the respective country and in respect of certain categories of goods and services. Hence, the same trademark may be owned by several entities using it in different countries or in respect of different goods or services in a single country.
The second approach consists in recognizing self-sufficiency of rights to domain names, since they are a means of individualization of information resources, rather than a company or goods. Accordingly, if this approach is used, the registration of a domain name may be cancelled only in a case where a domain name is used in violation of the legislation on advertising, causes unfair restriction of competition, infringes smb.’s trademark, etc. The second approach is used in Russia at the present time.
In the USA, in accordance with the Copyright Act in the digital age, web-site pages infringing copyright or a whole site may be deleted from results of the Google search by sending a request, without any notification of the site owner. The same may be done in respect of infringers of the trademark rights. However, this cannot solve the problem itself, since other search engines, apart from Google, do exist, which may be used for access to a site infringing smb.’s intellectual rights. As a rule, infringers of trademark rights are well aware of the illegal nature of their actions, but the temptation to take advantage of the reputation of well-known brand names outweighs moral aspects.
When registering a domain name, the registrar, differently from the case of a trademark, is not obliged to check the legality of using same, except for a case of refusing to register a domain contrary to social interests, the principles of humanity and morals. That is, the domain name registration is a notification procedure and presupposes the full and indisputable neutrality of an Internet-registrar in a case of a dispute over a domain; moreover, a registrar, due to the specific nature of his activity, may not be held liable for registration of a domain name that is similar to a means of individualization owned by a third party, and may not be the defendant in such disputes.
Only the domain administrator may be the defendant. However, in a case of a natural person it is technically impossible to establish connection between him and actions of placing information on the Internet. Only a computer or a server used for placing such information on the Internet may be identified, but not a placing person. Therefore, in most cases the domain administrator is summoned as the defendant and vested with burden of proving that he is not involved in an infringement of the trademark rights.