Upravni postupak registracije internet domena imena i pravna zaštita

Abstract

The introduction of the Domain Name System is a logical consequence of the need to facilitate the operation of the Internet by the computer user, or to avoid entering the Internet Protocol, which contains a long string of numbers and which may be a problem for many people regarding the memorizing. This is particularly important if we know that today in the world the Internet is used by more than 2.4 billion people. Given the importance and the economic function of domain names on the global market, and the fact that they may contain the names of trademarks or other commercial sign, names of celebrities etc., they can often be a source of conflict between the holder of such marks and the holder of the disputed internet domain name. This is the basic problem of a legal nature, which emanates from the administrative procedure of registration of the internet domain names, and which makes possible to anyone to register the internet domain name, provided that the domain was not previously registered by another user within the register where the request was submitted, which is in the spirit of the following rule first come, first served. The weaknesses of the administrative procedure of registrating the internet domain names are, at the same time, the base of the cause of many disputes in practice, which requires the study and research of the administrative procedure and the rules of registration for all levels of internet domain names. The function of the internet domain names is to mark a place in a virtual cyberspace in which there is a certain information, and that domain name can not be separated from the content of the information, and if the information relates to economic activity, the domain name gets function of the trademark similar to the company trademark or to the company trade name. Therefore, it is quite clear the fact why the trademark ratio, as opposed to the domain name, in theory is treated as "two aspects of the same kind of phenomena-symbol," despite the fact that the internet domain does not belong to the domain of intellectual property rights, they still have in common regarding this issue, only when their use can affect the violation of intellectual property rights, but they alone cannot be the subject of such rights. Basically, it is the existence of two different approaches, i.e. two different systems, based on different principles on which the right of the mark and the right to the internet domain name are regulated. The first system, internet domain name (registration of internet domain names) are commonly managed by NGOs without functional or territorial restrictions, so that internet domain names are registered on the basis of the principle of "first come, first served" (first in time is first in right). The other system, the system of marks (administrative procedure for registration of trademarks) is under control of the public (governmental) territorial authority (national or regional) who decides on the recognition of the right of the holder of the mark within the appropriate space. The candidate states that the problem is that the domain names are territorially unlimited, original, unique and unrepeatable, which strongly indicates that the value of domain names is several times greater than the value of trademarks alone, while, on the other hand, the trademarks are recognisable by their territoriality and specialty, because they apply to the territory of a state, region or special union within the state, i.e. the possibility that different goods and services exist with the same or similar trademarks, which means that the two undertakings may have the same or similar trade brand, with the exception of the well-known or famous trademarks. In order to achieve greater control in the administrative procedure of registration of internet domain names and the realisation of efficient and effective legal protection in cases of cybersquatting, the Internet Corporation for Assigned Names and Numbers (ICANN) has been established. The legal protection and the solution of the disputes that have arisen regarding malware and malicious behaviour of the domain name holder can be achieved through judicial and extrajudicial arbitration proceedings before the providers accredited by the ICANN. Analysing the relation between the judicial and extrajudicial procedures for resolving disputes, the candidate emphasised that both procedures have their strengths and their weaknesses. Comparing both processes and taking into account the prevailing advantages offered by a extrajudicial procedure for resolving these types of disputes in relation to proceedings in some EU countries (Belgium, Denmark, Italy, etc.), as well as in Serbia and Macedonia, specific national extrajudicial procedures were established modelled according to the UDRP proceedings. The author specifically mentions the importance of legal protection in order to protect the interests of the three categories of subjects. In the foreground, the legal protection of trademarks applies to business entities that when carrying out the economic activities provide protection from various types of abuse and unauthorised use of their trademark in the course of trade. As a second category of subjects, the candidate lists the consumer and his interest in the protection of various forms of unfair competition, which allows the consumer to choose the best product or service that meets his need. In the third category of subjects, the author includes the interest of the community, so that the legal protection of trademarks guarantees the effective implementation of the fight against unfair competition in terms of better organisation of the company in the market, improving the quality of goods and services together with the competitive price. The author starts from the hypothesis that improving of the normative decisions of the administrative procedure for registration of the internet domain names, not only at national but also at international level, as well as achieving greater cooperation between the countries, both at the bilateral and multinational level, and mutual respect decisions made in judicial and extrajudicial proceedings regulating this issue may be one of the ways to overcome the many problems and achieve greater harmonisation and synchronisation of numerous opened issues. In order to prove his claims the author has acquired during the research, he submitted a number of relevant decisions of the courts and decisions taken in the arbitral proceedings, and thereby successfully listed the negative consequences of illegal downloading and registration as internet domain name, the names already trademarked, a well-known trade names, names of other types of commercial designations, personal names, names of cities and states, etc. The author, in the text of the dissertation, clearly indicates that the topic is contemporary and complex at the same time, that creates a link between Public Law and Private Law, because in addition to Administrative Law and Information Technology Law, includes other legal disciplines, such as: Intellectual Property Rights and Company Law, Civil Law and International Law.