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Domain Name Issues In Russia

How are domain names dealt with in Russia? This article discusses current issues related to the registration and assignment of domain names in “.ru” zone (Russian top level country code domain) and trademark protection on Internet.

1. Registration and assignment of domain names in Russian segment of Internet (.ru zone)

To obtain a domain name in “.ru” zone, a Russian or foreign individual or legal entity must apply for its registration with one of domain name Registrars, either RIPN or RU-CENTER. As a pre-requisite, an individual or entity must either have a valid pre-existing Service Agreement with RIPN or, in the event of absence of such Agreement, enter into a new Service Agreement with RU-CENTER (the subsidiary of RIPN and the new “.ru” domain name Registrar).

No documents evidencing exclusive rights to a certain domain name are required. The required documents are limited to the executed Service Agreement and a copy of the registrant’s Certificate of Registration as a legal entity in the country of its incorporation. The Registrar then proceeds with a domain name registration on a first-to-file basis. Official registration fee is $24 per domain name with an annual renewal fee of $18 per domain name (tax included).

Domain names may be freely assigned by their owners to other registrants upon submission of assignment letters with the relevant Registrars, signed by both Assignor and Assignee.

2. Current legislation and court practice on domain names issues

Currently, neither the status of domain names nor their definition is set forth in the Russian legislation. The only applicable provisions may be found in the internal regulations of RIPN and RU-CENTER. As such, the only grounds of denial of domain name registration in “.ru” zone are based upon the impossibility of co-existence of two identical domain names and unregistrability of offensive words as domain names. No verification regarding identical/similar trademarks or senior rights is being performed by the Registrars.

The recent amendment to the Russian Law on Trademarks, adopted in December 2002, expressly included “the unauthorized use of a trademark on the Internet or within a domain name with respect to the goods or services, similar to those goods or services, in association to which the trademark is protected” into the definition of “unlawful use of trademark”. It is important that the legislation does not prohibit the use of trademarks within domain names in association with unrelated goods, or, for example, if a domain name exists but is not operated by the owner. Such situation leaves trademark owners without recourse in number of situations when their trademark may be used by cybersquatters.

It is interesting to note that certain Registrars of domain names in third level (e.g. “.da.ru”) have already incorporated UDRP (Uniform Dispute Resolution Policy) as part of their internal policy. This means that they defer to the respective provisions of UDRP, including limitations on the use of third parties’ trademarks in domain names.

At the present moment, there is no established court practice regarding domain name disputes. Previous court practice on domain name disputes, including cybersquatting cases, which took place before amendments to the Law on Trademarks came into force, was inconsistent. However, courts had the tendency to uphold the claims of trademark owners against cybersquatters, who were using prominent trademarks or firm names as part of their domain names. For example, in “mosfilm.ru” case the court forbid the cybersquatter from using the domain name “mosfilm.ru”, since the firm name Mosfilm (the famous Russian movie studio) was unlawfully used by the defendant. In kodak.ru the case passed several appeal levels until finally the higher court forbid the cybersquatter from using the designation Kodak. In nivea.ru and quelle.ru the court also found the trademark infringement committed by defendant with the same result being obtained in coca-cola.ru case. In the more recent miele.ru and baxter.ru cases, the court took a decision in favor of the plaintiff and ordered RIPN to close the domain name and to enable the plaintiff to register domain names.

In each particular case the rationale of the courts substantially differed from each other, and, in the absence of express anti-cybersquatting legislation, it was mainly based on broad interpretation of pre-existing general provisions of the Law on Trademarks, “unfair competition” and “bad faith” clauses of other laws. Also, the main difficulty in most cases was to obtain the enforcement of the court decision. Recently, however, RIPN amended its policy and undertook to close domain names if a relevant court decision expressly required it to do so.

It is not yet possible to predict how the new court practice will develop in view of the afore-mentioned amendments in trademark legislation. It is also worth to mention that the last amendments to the Law on Trademarks did not change the provisions of RIPN and RU-CENTER’s regulations, according to which the Registrars may cancel domain name registrations only pursuant to a court decision. At the same time, the practice shows that it is not rare when cybersquatters, faced with warnings of legal actions, voluntarily assign their domain names to the rightful owners.

By Pavel Arievich, Attorney

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