Just as entrepreneurs rely more and more on the Internet for the realization of their business ideas as part of an on-going trend, so too grows the importance of the domain name as a valuable asset that needs understanding and protection.
While seeking to define the domain as a concept, the idea of the Internet domain as a legally protected interest is reinforced, as the rights to the domain are specific proprietary rights - the word has Latin origins and is consistent with the notion that the Internet domain is the emanation of ownership of a separate part of the virtual environment, a part subject to the direct control of its possessor, who is also expected to defend it against infringements by third parties. The technical features of the subject matter have also imposed the construction of new methods and procedures to address the emerging conflicts, where a special place is occupied by conflicts between domain owners and individuals in possession of trademark rights, protected only in Bulgaria or trademarks of the European Union as well.
Nature of the Internet domain. Types of domains and systems.
It should be borne in mind that legally relevant is mostly the domain name – an alpha-numeric character expression, followed by the simple IP-address of the computer or server containing a web page. The Internet functions on the basis of multiple and complex protocols, such as the so called IP-protocol, which is used for transmitting packets of information from one destination to another, while the domain name indicates the same destination in plain language - eg. Apple.com uses several addresses, one of which is 188.8.131.52. Without domain names the computer could not connect to its final destination, namely the server of the computer on the other side of the connection that contains the information from the Apple website. At the same time the possibility of choosing a domain name provides major opportunities for personalizing the Internet space ‘owned’ by a person or a company.
Internet domains can be classified according to their rank in the hierarchy. The administration of domain names is delegated to ICANN (Internet Corporation for Assigned Names and Numbers), a non-governmental organisation. Domains can be divided into so-called Top-Level Domains (or TLDs, for the sake of brevity) - in the domain name the top-level section is located after the dot in apple.com, in the above example that would be .com. .Com is the most common top-level domain and serves to identify the commercial purposes behind registering the web page with this domain. Other examples include .gov - for government websites, .org - for non-profit organisations, etc. Along with these generic top-level domains, most countries are provided with a unique domain of the same level - for Bulgaria this is .bg, for Germany it is .de, etc. The European Union has created a top-level domain .eu, which enjoys great popularity.
Disputes concerning domain names are caused mostly by the so-called ‘second-level domains’ (for brevity SLDs). This is the part of the Internet address that comes before the dot and the top-level domain - if we continue using the example above, this would be Apple. By combining the two one obtains the full domain name, which may be subject to rules, regulations and protection against infringement by third parties, also according to Bulgarian legislation. The rule is that there cannot be two identical second-level domains within the same top-level domain - that is, even if you own a company whose name is, for the purposes of the example, Apple Inc., this company could not register a web page with apple.com as its domain name.
Domain names are allocated on a system that is internationally regulated, and a feature of this regulation is to a great extent the lack of interest by the public authorities. The Internet has tightly framed its immanent characteristic as a ‘free’ network, maintaining this position in relation to domain names, Bulgarian regulations being no exception to the rule.
The service is performed by Registries, depending on the willingness of the registering domain, and especially on the selection of top-level domain, using the services of intermediaries particularly often. Registries are organizations that have been delegated the authority to register domain names in a particular domain. The Registry that provides domain names for Bulgaria in the .bg domain is REGISTER.BG OOD, for Germany it is DENIC (www.denic.de). One of the most popular domains following its separation is the to-level domain of the European Union - .eu, entrusting it to http://www.eurid.eu/, for the US and .us - http: //www.nic.us/. The Registries have the authority to accredit the so-called Registrars or Registers – commercial entities who mediate between the Registrar and the Registrant (the one who wishes to register a new domain name).
Registration on a domain in Bulgaria
As this article cannot be exhaustive, also having in mind the numerous registry proceedings depending on the domain, we will focus on a short description and the features of the registration procedure for web pages in the .bg top-level domain.
Who can register a domain with the Bulgarian TLD .bg? The General terms and conditions of the Bulgarian Top Domain Registry introduce some limitations, providing that not every legal entity may request registration of such domain – it requires commitment to the Bulgarian legal reality, providing that persons holding judicial or commercial registration in Bulgaria or in a country member of the EU or have been established by the Bulgarian state authority; entities set up under an agreement between Bulgaria and other countries; companies and organizations registered abroad who have registered a branch or a commercial representation office in the Republic of Bulgaria may submit the registration of domain names in the .bg domain. The next requirement is that they are able Bulgarian citizens or foreigners with permanent residential permit, and finally - a proxy to persons who do not meet the above requirements, but the proxy needs to comply with them.
Upon registration of a web page with TLD .bg the Registry requires also a set of documents – an application submitted as an online form and the so-called identification documents. Working languages of the Registry are Bulgarian and English, documents in another language need appropriate translation and legalization. It should be noted that the identification documents differ according to the type of registrant, where when submitting them by proxy, they need notarized power of attorney. It is crucial to also enclose all documents that demonstrate the grounds for using the name, in order to serve a purpose in any disputes concerning rights held over the domain.
The next step is to determine the requirements for the name itself, which for the most part are technical requirements, despite having to a limited extent served as proof in legal arguments - as in Case C-569/08, where the CJEU delivered a preliminary ruling regarding the interpretation of Art. 21 of Regulation № 874/2004 of the European Commission, concerning the case of a company operating a website that registered in bad faith the website www.reifen.eu, having benefited namely from the technology behind transcribing special characters, in this case &, when registering a trademark. Link to a Bulgarian translation of the ruling can be found HERE and the ruling in English can be found HERE.
Excluded from the available names by the General terms and conditions of the registry are names of municipalities in Bulgaria, other states, as well as names, reserved especially for the registry itself. On a first come – first served basis, it is concluded that a name already used in the same domain cannot be registered, unless the latter is not vacated. The registry also has discretion regarding the extent to which the name chosen is consistent with standards of decency and does not lead to confusion.
Grounds for classifying a domain as protected
In order for the so-called domain name to enjoy special status, within the registration process evidence the use of (main points are listed):
- Name of THE REGISTRANT.
- Name of the registered trademark or geographical indication of THE REGISTRANT or those in the process of registration. In the latter case it is mandatory to sign a contract for the conditional registration of THE DOMAIN. The trademark or geographical indication has to be valid on the territory of the Republic of Bulgaria. The name of the trademark or geographical indication cannot be abbreviated.
- Registered name of a publication (for example, in possession of ISSN, ISBN).
- Name, acquired by THE REGISTRANT, in accordance with issued licenses, valid on the territory of the Republic of Bulgaria.
- Name of a media programme or transmission.
The main transactions carried out whose subject is domain names are expropriation deals with gratuitous character. Since the rights over domains are proprietary rights, it follows to be considered that in order for a legally valid transaction to be concluded, the general rules for the validity, as according to Bulgarian legislation, of transactions should be followed - will, formed by an entity with legal capacity, a valid power of attorney etc. The domain name can be freely leased, as well as to be the subject of a donation, with this being a practice in Bulgaria as well – a person would donate his rights over a domain name to the legal entity, a corporation for most cases, in which the person is participating.
From an accounting perspective, the domain name should be considered as an intangible asset. Very often the subject of a contract is domains registered by a person/company for the sole purpose of reselling them. Often the new trader finds himself facing the fact that there already is a registered domain name of their product or one that is similar to his company, and the registration is completely valid - then he is forced either to register a domain that most certainly will not be of the same benefit to them, or to buy the domain name from its current owner.
Another option is the so-called domain-sharing. It is essential that the contracts for transfer of rights explicitly state the obligations of both parties and especially the obligations regarding the registration in the Registry. A feature of the contract is that the General Terms and Conditions of Register BG LTD provide for a difficult format of the contract - it ought to be in writing, signed with notarized signatures of the parties or with electronic signatures of the representatives of both parties.
Under domain-sharing the rights of domain name usage are shared, with two main options for achieving this - a common page that uses the domain, subject of the contract, which contains links to the websites of the parties to the contract in the form of a catalogue or an ‘electronic storefront’ (or it could be contained in the sub-menus and pages devoted to relevant content modules.
Disputes regarding domain names, violation of intellectual property rights, liability
Given the scope of these issues, which are of high importance to the exercise of the rights of the holder of a particular domain name or a claimant for violation of the rights of illegal registration of such, these questions would be better dealt with in separate articles that would outline the framework for a better understanding of the issues. Law firm Ruskov & Coll. provides its services on both the Bulgarian and the international market, and will bring to your attention articles and reviews of procedures and rules for the conduct of disputes both within Bulgaria and internationally, placing particular emphasis on the possibility of representation in proceedings before the WIPO (World Intellectual Property Organization) in disputes with respect to domains, as well as under Regulation № 874/2004 of the European Commission.