Violations of intellectual property rights on the Internet can
be difficult to handle — and taking a violator to court
over a domain name dispute has recently become more challenging in
the Russian Federation. Cases that involve a natural person who is
not registered as an individual entrepreneur can be particularly
problematic, while certainty surrounding the competent court is
being re-established after an unexpected change in case law.
Cases involving natural persons are usually subject to Common
Courts1, while Commercial Courts specialize in
economical disputes usually involving legal persons or individual
entrepreneurs, including disputes with an economical character that
emerge from relationships between
citizens.2 Therefore, in some cases, a natural
person who is not registered as an individual entrepreneur (and
consequently not obviously involved in economical activities) can
be taken to a Commercial Court when the economical character of the
case allows it. Additionally, the Commercial Courts are the
competent courts in disputes that emerge from business
relationships in the sphere of the Internet, especially when
international companies are involved.3
The case law evolved accordingly. Starting in 2005, cases
involving domestic and foreign companies and natural persons
without a registration as an individual entrepreneur were decided
by Commercial Courts. This well-established case law was in place
for more than ten years. Domain disputes that were decided under
this previous case law include well-known international companies
such as etro.ru, mumm.ru, tiguan.ru and icq.ru.
However, the Russian Supreme Court released an overview of its
case law in 2014. In an unexpected decision, it determined that
cases involving natural persons should be decided exclusively by
Common Courts.4 This represented a major change
from earlier case law.
The first international company affected by this significant
change was Jaguar Land Rover Limited. In 2015, the international
company sought to sue a natural person who was not registered as an
individual entrepreneur for using the trademarks Jaguar and Land
Rover in multiple domain names, but the Moscow Commercial Court
decided that it could not hear the case because the defendant was a
natural person.5 The Russian Supreme Court, as a
court of cassation, found no basis to review the former decision
and therefore emphasized its previously stated
This new approach has been criticized for two main reasons.
First, the Moscow Commercial Court should not have taken into
account the status of the defendant only, but should have also
considered the economic character of the dispute. The fact that the
defendant was a natural person without a registration as an
individual entrepreneur does not automatically lead to the
conclusion that the lawsuit cannot be decided before a Commercial
Court. On the contrary, Commercial Courts have the necessary
expertise and work more efficiently in these cases. Additionally,
they are the competent courts in cases concerned with the provision
of a service on the Internet, especially in cases involving an
international company. The registration of a domain is widely
assessed as a service even when the administrator is not registered
as an individual entrepreneur. Second, this new decision overthrows
the well-established case law.
This change in case law has already led to some difficulties.
Based on the Moscow Commercial Court's judgement, the
international company Saucony Inc. sought to sue a natural person
before the Common Court in Kaliningrad over an analog issue in
2015. The Common Court did not accept the lawsuit and argued that
it was not the competent court in this case. Therefore, the
Kaliningrad Commercial Court accepted the lawsuit — but
made very clear that it considered its acceptance to be an
exception to the new case law. The Commercial Court deemed this
exception as necessary to provide the company with legal certainty
after the Common Court did not accept its lawsuit.
Despite the exceptional case in Kaliningrad, domain disputes
involving natural persons that are not registered as individual
entrepreneurs are now decided by Common Courts. This case law will
be applied to similar cases involving international companies.
Hopefully, the Common Courts will quickly gain the expertise that
the Commercial Courts acquired over the past ten years.
3 Art. 247 Part 1 Point 9 Russian Commercial
4 "Overview over the legal practice by the
Supreme Court of the Russian Federation 1 (2014)" (confirmed
by the Praesidium of the Supreme Court RF 24.12.2014) //
"Bulletin of the Supreme Court", Nr. 3, 2015
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