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 stance.6
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.
1 Art. 22 Russian Civil Procedural Code
2 Art. 28 Russian Commercial Procedural Code, Art. 27 Part 2 Russian Commercial Procedural Code
3 Art. 247 Part 1 Point 9 Russian Commercial Procedural Code
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
5 Decision of the Moscow Commercial Court, 10.09.2015
6 Decision of the Russian Supreme Court, 01.06.2016