For those who monitor domain disputes in Russian arbitration courts, the following points have not been surprising for a long time: (1) claims on domain disputes are often filed in connection with violations (according to the plaintiffs) of intellectual rights; (2) individuals who are not individual entrepreneurs often act as defendants. Why is that? Often the answer is simple: such persons are (or were) administrators of domain names that have become the object of judicial disputes. Looking ahead, I note that there are already many cases in Russia in which such administrators were found responsible for violations of the intellectual rights of plaintiffs and awarded compensation of a significant amount to them (often over 500,000 rubles).

Since the number of domain disputes is not decreasing, and individuals will continue to be involved in such cases, I propose to figure out when and for what actions a person can be held liable in domain disputes.

A little terminology

First, let's define the terminology. In Russian court practice, a definition has already been given who should be recognized as a domain name administrator:

"Domain administrator is a person, individual entrepreneur or legal entity for which the domain name is registered".
_{decision of the Moscow Arbitration Court dated November 3, 2011 in case No. A40-73876/2011
decision of the Primorsky Krai Arbitration Court dated July 4, 2018 in case No. A51-4335/2018
decision of the Moscow Arbitration Court dated January 15, 2015 in case No. A40-93262/2014}

Thus, the domain administrator can be a person, individual entrepreneur or legal entity.

For those who don’t know where to check who the domain name is registered for, I give a brief explanation about this. It is necessary to use one of the WHOIS services, enter the domain name of interest there, and in the results of the check see who is recorded in the corresponding field (it can be called, for example, "Administrator", "Admin name", etc.). E.g. if we are interested in who administers the domain name garant.ru, we will find the answer by using the WHOIS service on Reg.ru site – we found that the administrator of this domain is a legal entity called NPP "Garant-Service" (LLC).

Secondly, let's define another term – domain name administration – as well:

"Administration usually includes: ensuring the functioning of the server, maintaining the site in working condition and ensuring its availability; performing backup of site components and database settings, other types of work"
_{decision of the Moscow Arbitration Court dated November 3, 2011 in case No. A40-73876/2011
decision of the Moscow Arbitration Court dated May 28, 2012 in case No. A40-25696/2012}

Thus, the court recognizes that the administration of a domain name is a combination of the following actions:

• ensuring the functioning of the server;
• maintaining the site in working condition;
• ensuring the availability of the site;
• performing backup of site components;
• backup of database configuration parameters;
• other types of work.

In addition, based on the decision of the Moscow Arbitration Court dated May 26, 2014 in case No. A40-188267/2013, the following actions and operations can also be additionally distinguished:

• maintenance of the server on which a website is hosted;
• carrying out organizational and technical measures to protect information on a website from unauthorized access;
• installation of the software necessary for the functioning of the site, including in case of an emergency;
• registration of employees serving a site and granting the right to change information on a site;
• carrying out routine maintenance on a server (replacement or addition of site components, maintaining log files of archived copies, monitoring the availability of free database tablespace, etc.);
• ensuring the placement of information on a website;
• implementation of continuous monitoring of the state of the security system of services necessary for the correct operation of the application and information on a site;
• performance of works on modernization and modification of the functional services of a site;
• making changes to a site structure and design.

Thus, we can say that the administration of a domain name includes a whole range of works and actions designed to ensure the normal functioning of a website or service as a working information system. It is the administrator who creates the necessary technical conditions for the appearance of various materials on a site, their modification and their removal (blocking) from there.

The domain name registration system is designed in such a way that only one person or legal entity can be specified as the domain name administrator in the registry of records of domain name owners. At the same time, the domain name can actually be administered by a large number of persons and/or entities (e.g. if a domain administrator engages a third party to administer the domain name under a contract for the provision of paid services).

Legal status of a domain name administrator

Next, let's determine the legal status of a domain name administrator under the established Russian court practice.

"A domain name administrator determines the order of use of a domain, is responsible for the choice of a domain name, possible violations of third parties’ rights associated with the choice and use of such domain name, and also bears the risk of losses associated with such violations"
_{decision of the Moscow Arbitration Court dated November 3, 2011 in case No. A40-73876/2011}

That is, Russian court practice recognizes that a domain name administrator not only determines the order of use of it, but is also responsible for both the choice of a domain name (during its subsequent registration by him) and for possible violations of third parties’ rights related to such a domain name. In addition, an administrator also bears the risk of losses associated with such violations.

The following conclusions of court practice are also noteworthy:

"In accordance with the Rules of registration of domain names in the RU domain, a domain administrator, as a person who has concluded a domain name registration agreement, administers the domain, that is, determines the order of use of the domain. The right of administration exists by virtue of the domain name registration agreement and is valid from the moment of registration of the domain name during the registration period."
_{The decision of the Moscow Arbitration Court dated January 20, 2015 in case No. A40-178919/2014}

"The actual use of the site resources where the information is posted is impossible without the participation in one form or another of the owner (user) of the domain who owns the password for posting information on the corresponding domain name on the website"
_{decision of the Primorsky Krai Arbitration Court dated July 4, 2018 in case No. A51-4335/2018}

"The domain administrator is powered to form and control the information posted under the corresponding domain name, in particular, the password for posting information on the corresponding domain name on the website. So, the responsibility for the content on the domain administrator's website should be borne by the domain owner, since the actual use of the site's resources is impossible without the participation in one form or another of the domain administrator, who is the person who created the appropriate technical conditions for visitors of his web-source"
_{decision of the Moscow Arbitration Court dated January 15, 2015 in case No. A40-93262/2014}

"The right of administration exists by virtue of the domain name registration agreement and is valid since the moment of registration of the domain name during the registration period"
_{The decision of the Arbitration Court of the Tver region dated December 27, 2017 in case No. A66-3737/2017}

"The domain administrator has the authority to form and control the information posted under the corresponding domain name, in particular, the password for posting information on the corresponding domain name on the website"
_{The decision of the Moscow Arbitration Court dated May 26, 2014 in case No. A40-188267/2013}

As you can see, the courts pay close attention to the legal status of the domain name administrator, designate his role, determine the criteria for his liability. This suggests that the investigation by a court of the role of an administrator of disputed domain name (and sometimes the establishment of his identity) is one of the key issues when a court is considering the case. It is the qualified assessment by the court of the role of the disputed domain name administrator that makes it possible to determine whether there was an violation in his actions or inactions, whether he should be brought to the case as a defendant or a co-respondent, whether it is necessary to assign responsibility (including material nature) to him for violating the plaintiff's rights.

For clarity, I suggest you familiarize yourself with a small collection of cases from the Kardamon.Dm database, in which individuals were defendants in domain disputes, since they were administrators of disputed domain names and violated the intellectual rights of third parties. This table also shows the amount of compensation that the courts ordered such defendants to pay in favor of the plaintiffs.

Conclusions

Thus, from the text above, we can formulate the following conclusions from this court practice:

1. If you administer a domain name, you bear the risks of violating the rights of third parties.

2. If you administer a domain name, in certain cases you may be recognized as an information intermediary.

3. If the court establishes the responsibility of the administrator, compensation for violation of the rights of third parties may be significant (for example, over 500,000 rubles, see the decision of the Arbitration Court of the Moscow region in case No. A41-27647/14, the decision of the Arbitration Court of the City of St. Petersburg and the Leningrad region in case No. A56-61922/2014).

So, if you are a domain name administrator, you should pay special attention to check whether you are violating intellectual property rights by using the appropriate domain name. And if you are at the stage of acquiring or registering a domain name, it is recommended to make this check in advance – it can help in the next future to avoid the situation where you will be forced to pay compensation to a third party for violation (even unintentional) of this party’s rights.

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