АХБОРОТ
ТЕХНОЛОГИЯЛАР
ҲУҚУҚИ
♦
INFORMATION TECHNOLOGIES LAW
♦
ПРАВО
ИНФОРМАЦИОННЫХ
ТЕХНОЛОГИЙ
2007
№
3
♦
ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
♦
UZBEK LAW REVIEW
♦
ОБЗОР
ЗАКОНОДАТЕЛЬСТВА
УЗБЕКИСТАНА
81
I.R. Rustambekov
*
Magistrate of TSIL
ABOUT LEGAL NATURE AND LEGAL REGULATION
OF DOMAIN NAMES IN THE REPUBLIC OF
UZBEKISTAN
Today there is no consensus of opinion about the legal
nature of domain names, domain name’s legal relationships
in national doctrine. The place of domain names in the sys-
tem of civil legal relationships is not also determined. Some
authors contend that domain name is the self-dependent
means of individualization; the others believe that domain
name is just one of the way how to put traditional means of
individualization into economic circulation.
As U.L. Nemets notes in his thesis, "the legal relation-
ships about domain names on the Internet belong to toward
the intellectual property and to define more accurately to the
one of its institution "The means of individualization of eco-
nomic circulation participants and their products work, ser-
vices". Such a conclusion is based mainly on the fact that
domain name’s legal relationships, infringe first of all on
trademarks and brand names owner’s interests
1
.
The law currently in force confirms that the legal rela-
tionships about domain names on the Internet belong to
the intellectual property and to the institution of means of
individualization of economic circulation participants and
their products, work, services".
However by analyzing the resolution of domain names
disputes legal practice or, more precisely, some of the
court cases, concerned with using the Internet, we can
see that such a legal practice is extremely ambiguous and
contradictory today. There are a lot of reasons of such a
complexity: the legal complication of the institution of intel-
lectual property, the lack of the legal regulation of the
Internet activity, the lack of the judge’s special profes-
sional skills in resolution of domain names disputes.
Analyzing the court cases, concerned with using the
Internet, we must note that in such cases the judges ex-
amined the cases, as a matter of fact, connected with us-
ing the traditional means of individualization such as
trademarks, which appeared in the system of addressing
in national segment of the Internet.
However in court cases it is a question about using the
trademark "in the Internet in particular in domain name
and in others methods of addressing", but not about the
domain name as those, in other words as one of the ways
of using the trademark in domain name. Consequently, the
domain name may be used as one of the commercial ef-
fective form of using the traditional means of individualiza-
tion protected by the legislate of exclusive rights for means
of individualization, but it is important to distinguish ways
and forms of using the traditional means of individualiza-
tion from the means of individualization as those.
So, in legislation the recognition of domain names as
one of the ways of using the trademark occurs, but not the
acknowledgment of uniformity of the domain name and the
trademark and addition of legally protected means of indi-
vidualization list
2
.
The only act which mentioned the record about the
regulation of domain name legal relationships is "The
Trademark, Service Sign and Names of Places of Good’s
*
About the author: www.infolaw.uz
1
Nemets U.L. Domain name in the Internet as a new Object in
intellectual Property [Electronic resource]: Diss...:12.00.03. M.:
RGB, 2005.
2
Milutin Z.U. The Correlation of domain names and Means of
Individualization [Electronic resource]: Diss...:12.00.03. M.: RGB,
2005.
Origin Act".
If we have a position "domain name is a trademark,
used on the Internet", we will lose sight of such objects,
which are not trademarks: international non-patented
names of pharmaceutical medications, the names of inter-
national intergovernmental organizations, personal names,
geographical names and other geographical terms, the
names of different objects of outward things (objects and
subjects of law), etc.
Consequently, a trademark can always be used in a
domain name but not each domain name can be trademark.
So, the author’s opinions that "legal relationships about
domain names on the Internet belong to the intellectual
property, on account of the fact that such relationships
infringe first of all on trademark owner’s interests seems
contrary to fact.
According to another point of view domain names are
one of the ways of using traditional means of individualiza-
tion in civil circulation. So they can not be rated as self-
dependent means of individualization and be protected as
the traditional means of individualization.
Some authors hold the opinion that domain name is
one of the properties of documents, and identify the infor-
mation on the Internet, but not goods. That is why the
conclusion that domain name is analogous the trademark
is incorrect
3
.
Actually the trademarks identify production, work or
service, but domain name identify the information on the
Internet. So using domain name similar to trademark could
not be considered as bleach of exclusive rights of trade-
mark owner, because according to the act mentioned
above, may be the usage of similar designation for identi-
fication in civil circulation of goods to which the trademark
is registered, but not the information on the Internet.
M.V. Batyanov and I.V. Kiselnikov consider that "in re-
spect to civil legislation the right to have and use domain
names must be qualified as a property rights, consisting in
a capability of a natural or juridical person which had reg-
istered domain name, to place the information resource on
the Internet, access to which will be available by typing the
composition on letters and numbers that form domain
name
4
.
The Internet legal relationships are similar to the legal
relationships in real life. In the Internet the subject’s of law
behavior will be defined by the same norms of legislation
as in real life but with the specification of virtual space
5
.
As it is obvious from the foregoing, it is rather difficult
to find the answer to the question about the legal nature of
domain names. The problem is probably, in the try of sci-
entists to find the answer taking into account already exist-
ing means of civil legal relationships regulations. It can not
be applied in such legal relationships, because we face a
new object of civil rights, which did not exist before the
Internet was introduced.
In my opinion, there is an argument to consider that
domain name is an assumed name which is used by its
owner to obtain his rights to create and use the website or
the Internet page.
On account of the domain name specificity we will divide
our theory "domain name as a personal nonproperty right"
into two parts. In the first part we will make a research of the
3
For example: Nevzorov I.V., The legal Nature of domain names
and its Correlation with the intellectual Property Objects // Legal
help system Consultant Plus.
4
Batyanov M.V. and Kiselnikov I.V. Domain name as an Object of
Copyright. The Release of the VIII-th Conference of representa-
tives
regional
scientific
Research
Nets
RELAN.
2001.
5
Gulbin U. Do we preserve an Internet? // IP. Copyrights. 2003.
№
9.
АХБОРОТ
ТЕХНОЛОГИЯЛАР
ҲУҚУҚИ
♦
INFORMATION TECHNOLOGIES LAW
♦
ПРАВО
ИНФОРМАЦИОННЫХ
ТЕХНОЛОГИЙ
2007
№
3
♦
ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
♦
UZBEK LAW REVIEW
♦
ОБЗОР
ЗАКОНОДАТЕЛЬСТВА
УЗБЕКИСТАНА
82
object of determination of domain name as a personal non-
property right of the natural person, in the second - a re-
search of the object of determination of domain name as a
personal nonproperty right of the juridical person.
1. Domain name as a personal nonproperty right of
the natural person
The personal nonproperty rights, which are inalienable
from the person, are enumeration
in the part 8, article 197
of Civil code of the Republic of Uzbekistan. There is men-
tioned the right to have a name among these rights.
Let’s make analyses of the object of the domain name
according to the features of civil nonproperty rights.
Non-material nature of the personal rights becomes
apparent in the fact that they can not be evaluating (in
money equivalent). Domain name can not be an object in
civil bargains; it can not be sailed, can not be inherited in
temporary use, and can not be left as a deposit, because
the domain name is the basis of the personal status and it
possesses a certain value for the person.
The exposure of the person and its development is an
important feature of the personal nonproperty rights. Do-
main name is used for individualization the information
massive and the person individualization who place this
information on the Internet. This is the main feature of
domain names-it individualizes the information (can be a
mean of addressing) and individualizes the subject of law
at the same time.
It is mentioned in the Civil code that non-material
goods can not be inherited from one person to another.
Domain name can not be transfered from one person to
another because in this situation it will lose its value to
individualize the subject of law on the Internet.
The personal nonproperty rights can arise (or end) in
the presence of certain events in consequence of legal
acts or by the policy of different agencies.
It is mentioned in the Civil code, that the personal non-
property rights may belong to the person from birth. The
most part of the personal nonproperty rights ends with the
dearth of its bearer
1
.
So, the domain name right belongs to everyone from
birth and loses its legal value with the dearth of its owner.
The subjective civil law arises at the moment of its ap-
propriation. To arise a domain name right it is necessary
to make its registration.
So the right to have a name is a personal, individual
right of the citizens, which constitute the basis of the per-
sonal status, and this right couldn’t be evaluated because
it possesses a certain value for the person. The substance
of domain name is necessary to reveal according to which
institutions of civil law it is used, for example, in the Copy-
right act. It gives the common conception of "citizen name"
in the Civil code. Consequently
1) the domain name right couldn’t relate to the result of
intellectual activity;
2) the legal regulation of domain names must be real-
ized according to the Civil code of the Republic of Uzbeki-
stan despite the fact that the domain name right may be-
long to the juridical person.
2. Domain name as a personal nonproperty right of
the juridical person
According to the legislation the juridical person is a will
possessing and capable person. Entering in legal relation-
ships as a self-dependent subject the juridical person real-
izes its juridical personality by appearing its volition, ob-
tains and realizes material, corporative and other rights
and responsibilities, and accounts its acts.
As Dernburg noticed evenly, the juridical people have
1
Maleina M.N. The personal nonproperty Rights of the Citizen:
Conception, Realization, Defense. M.: M3 Press, 2000. P.13.
not just a property juridical personality; but also they have
a private of juridical personality as a whole, consequently
they have the similar rights and responsibilities as the
natural persons so far as it is permitted by their properties
and answer their purposes
2
.
The juridical persons in the Republic of Uzbekistan
may obtain a great number of property rights and respon-
sibilities, including nonproperty executive rights such as
right on brand names, right on the results of creative activ-
ity: copyright, patent etc.
The legislator put such personal nonproperty rights as
the right to have a name, copyright, the right on defense of
business reputation in the article 98 of Civil code of the
Republic of Uzbekistan put on a par with such an un-
material properties as life, health, dignity, good name. So
the legislator doesn’t separate such a conceptions and do
not separate the subjects of law which can obtain these
rights-natural or juridical person.
According to it and by analyzing the article 98 of Civil
code of the Republic of Uzbekistan we can consider that
the juridical person can also have the domain name rights.
The juridical person can obtain the subjective rights if it
is not unauthorized and does not contradict the special
juridical personality of the juridical person. According to
the article 81 of Civil code of the Republic of Uzbekistan
non-material properties are the objects of the civil rights.
So the subjective right is a capability and security of
one's behavior. As regards the honor, right to have a
name and business reputation, the objective right doesn't
determine their holder's behavior. The law only provide for
the defense of the honor, right to have a name and busi-
ness reputation when these rights are broken, and the
holder of these rights decide how to use the means of
defense of these rights. So it is correctly to talk, for exam-
ple about the subjective right of defense of the honor and
dignity a natural person and the subjective right of defense
of the right to have a name and business reputation or a
juridical person.
Consequently the object of the personal non-property
right is the subjective rights which are based on the de-
fense of these rights.
According to the conclusion above, we can say that the
right to have a domain name, as a personal non-property
right is the subjective right which arise
s
on the occasion of
the right to have a name in view of the part 8, articles 97-
100 of Civil code of the Republic of Uzbekistan, concerned
the personality of its holder (for the natural person) and with
the right of business reputation (for the juridical person), and
directed to exposure and development of the holder's indi-
vidualization which also have special foundation of its be-
ginnings and cessation in the view of the legislation.
Резюме
В
вводной
части
статьи
говорится
о
понятии
до
-
менного
имени
и
различных
мнениях
ученных
по
дан
-
ному
вопросу
.
В
основной
части
рассматриваются
правовой
статус
доменных
имен
и
виды
их
правового
регулирования
.
В
заключении
автор
приходит
к
выводу
,
что
дейст
-
вующее
законодательство
РУз
не
дает
конкретного
по
-
нятия
доменного
имени
и
путей
правового
регулирова
-
ния
связанных
с
ним
отношений
.
Следует
всесторонне
изучить
данный
вопрос
и
урегулировать
его
внесением
соответствующих
норм
в
действующее
законодательст
-
во
,
а
также
принятием
новых
правовых
норм
.
2
Dernburg. The civil Law of German Empire and Prussia, 3d ed.
Vol.1. 1906.
