Hello. In this article, I would like to talk about how to sue a domain name from cybersquatters. It will be about the archlinux.ru domain. The main problem is that the court must provide evidence of infringement of exclusive rights. But I am not any organization or un, I just contribute to the development of the project. It seems to me that at the same time I have certain rights that I can protect.



I studied the issue of domain disputes in as much detail as possible and began to study the legislative issues on which I will rely. But I need some more help / advice from people who understand these issues.

It is clear that no one is going to give the domain “peacefully”. There can be no talk of a ransom either, since they are asking for crazy money: from 1000 euros. Even if they asked for 1000 rubles, I would have thought, because I do not want to support their business. You can, of course, try to talk with the administrator, saying that no company will buy this domain for millions from him, the community too, and he will only get red tape with the courts. But before that, I would like to have legal support.

The site of the focal point has a section on domain disputes: www.cctld.ru/ru/activities/faq/disputs and this . There are examples of claims, a selection of court decisions, and step-by-step instructions for domain disputes. Here I will briefly describe the instructions from their website:

Dispute Resolution Issues

1) A site hosted on the Internet violates my copyright and related rights. What to do?
This paragraph states that if the rights to content are violated, then claims should be directed to the hosting provider.
If the violation of copyright and other rights related to it is associated with the registration and administration of a domain name, complaints (claims) should be sent directly to the domain name administrator.
In our case, the violation of exclusive rights occurs as a result of using a symbol in the domain name similar to ... with what? The description here says either a trademark or a service mark. Archlinux - what is it? After all, this is not a product, not a company name, nor a commercial designation. Most of all, the “result of intellectual activity” is probably suitable here. By analogy, what is Windows? I found a site on which there are open registries , but there is no normal search there to find out. In terms of meaning, as it seems to me, it is either a trademark or computer programs. But no one will take arch linux for the goods?

2) How to get information about an administrator who violates my rights?
This paragraph states that accredited registrars possess this information. In accordance with clause 9.1.5. Rules for registering domain names - “The registrar has the right ( but is not obliged? ) To provide information on the full name (name) of the administrator and his whereabouts (place of residence) on a reasoned written request of third parties containing an obligation to use the information received solely for the purpose of filing a lawsuit.”


The site of the coordinating center says that the applicant (copyright holder) has the right to request information from the registrar about the administrator of the corresponding domain name in order to subsequently protect his legal rights and interests in court by filing a lawsuit against the administrator. The applicant (copyright holder) must reasonably justify the subject of violation of rights with the application of relevant documents confirming exclusive rights , as well as the fact of violation of exclusive rights. This is the problem ... What documents should I provide? I am a company and do not sell products under the archlinux brand.
Also on the dispute resolution pageon the registrar’s website it says: “Full information about the Domain Administrator, containing all the data about it stored in the domain name database, can be provided by the Registrar only at the request of law enforcement agencies and the court in cases and in the manner provided for by the current legislation of the Russian Federation.” Some kind of recursion is obtained: in order to sue, I need information about the administrator, and in order to find out, I need to sue. Is this information legal?

3) Infringement of trademark rights as a result of registration and use of a domain name.
This clause states that administrators are responsible for violations of the rights of third parties. claims related to violation of trademark rights must be addressed directly to the administrator of the corresponding domain name.

The registrar provides a form of communication with the administrator, but I am very confident that the administrator will not answer my peace request. So, to get to the case right away, I need the address of his whereabouts to sue him. So, the registrar still has to give me (according to the previous paragraph) information about the administrator. We find on the registrar's website contact information:


Now you need to send a written request for data request to the registrar. My thoughts on the justification of violation of rights in the next section. And regarding the information “Please do not send documents by registered letter with declared value, since the delivery time in this case is significantly increased”: I don’t know if such a request may be normal, but still I want to clarify if my letter will go straight to a trash can if I send it not by registered mail and without declared value? In my opinion, the main thing here is to send a letter of receipt of delivery. And yet: do I need to send a letter to the actual or legal address?

4) Judicial settlement of the dispute.
4.1) each person participating in the case must prove the circumstances to which he refers asthe basis of their claims and objections . evidence is carried out using evidence, which include, in particular, written evidence. Evidence confirming the violation of exclusive rights to a trademark (service mark) may include expert opinions , authorized bodies, protocols for examining written evidence. Can this help somehow?

4.3) This is the only point where at least something is said about a simple citizen. But in all document templates, fields are still used either for legal entities or for individuals.
disputes related to the protection of exclusive rights to means of individualization of legal entities , goods, works , services and enterprises, rights to useresults of intellectual activity , etc. considered by the arbitral tribunal, regardless of whether the applicants are organizations, individual entrepreneurs or citizens .
A properly executed statement of claim in the application of a set of documents confirming the grounds to which the plaintiff refers are sent to the arbitration court at the location or place of residence of the defendant.

Is it really impossible to protect our interests (to sue a domain for the Russian-speaking community) without being a legal entity? If you register a legal entity, then perhaps the option of individualizing legal entities is suitable (see below). I understand that the work of archlinux is not (?), But is the result of intellectual activity. Then is it possible to prove that we work, work, and some kind of squatter earns advertising revenue, spoiling the impression of our good sign of individualization, and in general has nothing to do with us.

What will be the basis?

Individual

In general, the easiest way would be to file a lawsuit from an individual. But the problem here is to justify the violation of rights. Yes, I contribute to the community, but where is the proof that I am under this nickname? And that I’m not just some Vasya who decided to squatter the domain from another squatter. But in general, do I have some kind of copyright when, for example, I edit arch linux wiki? Maybe they need to be fixed and on this basis to demand to give the domain?

pluses - the simplest in the sense that you do not need to register any organizations.
Cons - Where are the documents that I have to do with the project, and why should I get the domain?

If you go this way, then I imagine the case something like this: notarize the screenshots from the pages of the Russian team of translators ArchWiki, Statistics of activity of ArchWiki editors , Contribution of Agent0, which prove that agent0 invested a lot of its intellectual property in the project =). I also share a certified screenshot of the buyback request page and that advertising is spinning on the archlinux.ru domain and a message about the sale of the domain is displayed. I organize an examination of the fact that the project is not fake, exists for a long time, is actively developing, is recognized by the community. I am writing a statement to the notary that I, as an individual, take responsibility that I am the contributor under the name agent0, show the notary that I can log in, he certifies me a letter (or signature on it?).

Then I write a letter to the registrar: “In accordance with paragraph 9.1.5. Rules for registering domain names in .RU and .РФ domains, I ask you to provide information about the administrator, since they violate the rights to my intellectual property (or an individualization tool?), Which is confirmed by the documents: a certified copy of the statement that I am acting under the nickname agent0, certified proof of agent0's participation in the project (another certified copy of the screenshot?), expert opinion on the activity and prescription of the project. The administrator’s data will be used solely to protect their legal rights in court. ”Well, after that, almost everything is clear.

Public organization

Since in all documents either a person or legal entity acts as a plaintiff, I thought about registering. Ip is not suitable: I am not doing anything, but there will be fuss with reporting, and then again, where is my attitude to archlinux.ru? So you need a legal entity like "public association of archlinux users." I thought that the basis of the violation would be the means of individualization - the company name. But here they may refuse to register, since there is already such a domain name (just a squatter). Again, you can make an expert conclusion that our project started much earlier than the squatter occupied our domain, and we have a direct relationship to this project, and require registration on the basis of an expert opinion.



Then I thought, why not make a more general organization like “a community of supporters of open source software”. Then, it would be possible for this legal entity to represent the interests of many other projects (for example, linuxmint.ru is also inundate). In the west there are several such organizations (FSF, SPI , SFLC , and others) that are engaged in legal and hosting assistance to open source projects. We don’t seem to have such, well, well, someone should create it. Public organization is a form of public association (non-profit organization). This, it seems to me, is a good option and the most suitable form of legal entity for our purposes.

If this option is chosen, what evidence will be used? Logically, the “community of supporters of open source software” must prove that archlinux is an open source project (notarized translation from the About Arch? Page) and that the word arch linux is used as a means of individualization of specific representatives of a given public organization (specifically, what documents? Notarized screenshot from site or what?).

Or another scenario: everything is the same as I wrote in the section with an individual, only here the organization would protect its member. That is, a participant (or several participants) of an organization makes intellectual property, has a means of individualization, and some kind of squatter there is not related to us, but uses our sign.


pluses - this would allow
cons to protect similar disputable situations in the future as well - I’m worried that Wikipedia says “The legal capacity of a public association as a legal entity arises from the moment of state registration of this association”. It then turns out that the squatters used to register the domain, but now it seems as if the domain is registered before the trademark, the domain will remain with the owner.
On the other hand, I saw a claim where the trademark was registered later than the domain, but the court granted the claim. I suppose that if the defendant argues, it will be possible to appeal to the fact that our other means of individualization - the domain archlinux.org.ru, was registered earlier than the captured archlinux.ru.

So far, the archlinux.org.ru administrator has not contacted (I sent a letter asking for assistance and the possibility of speaking in court). And on the site itself there is no information to contact the administration.

Representation of the defending organization

I read that public organizations can be international. This means that the main branch of the organization is located in Russia, and smaller branches in other countries? Or is this just the case when there is a non-profit organization in America and it wants to register its branch here?
I contacted the arch linux project leader and he said that the project is under the legal protection of the American non-profit organization Software in the Public Interest. However, it seems that this organization operates only in the United States. If it would be possible to register a regional representative office (or a branch that did not understand the subtleties of the difference), then we could protect the project on behalf of this organization here. Trademarks may be international, but the subtlety is that trademark archlinux itself is not registered, but recognizable, as described below on the project pages.

Cons - There is just a hell of a duty: 120,000 rubles. And a bunch of headaches with extracts from foreign Egyptians, apostilles, etc. It would be easier then to buy the domain. A lot of trouble with registration and documents (the rules of fair use of a trademark will have to be translated and certified). But maybe you can agree with them that they themselves organize the Russian branch.
pluses - they protect the project, and the main project domain (archlinux.org) is registered much earlier. This can be a powerful argument.

Your advice

So thoroughly, I decided to take up this matter. At this stage, I would like to consult with the community, so if you have any ideas, answers to my questions or tips, please write in the comments.

If you do not have an account on habrahabr, you can write a comment on the forum archlinux.org.ru