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  • Writer's pictureLukas Pelcman

What to Do If the Domain Name Is Already Occupied?

Updated: Feb 14

In practice, it very often happens that the domain name we want to register is no longer available because it has been registered by a third party. Domain name registration is essentially based on the „first come, first served“ principle. Therefore, if a third party registers a domain name that does not contain any designation protected by intellectual property rights (or other rights), we have no claim against such person in relation to the domain name. We can try to contact the domain holder and agree with him on the sale of the domain at a price acceptable to both parties, but prices can range from tens to hundreds of thousands of crowns, depending on how attractive the domain is.

As for a domain name that contains a protected designation, it is usually possible to demand its free transfer on the basis of existing rights to such a designation in the so-called domain dispute. Most registration agreements (we dare say that in all) there is a requirement that the registered domain name does not infringe the rights of third parties (especially trademarks, business name or possibly other domain names). For these cases, the registration agreement often provides for a special procedure for resolving possible disputes. Such a procedure is referred to as alternative dispute resolution (ADR) and is an alternative to traditional judicial (civil) proceedings.

Compared to traditional litigation, ADR has proven to be an effective tool for rights holders to pursue claims in domain disputes against third parties who have registered the domain name in bad faith and / or without sufficient legitimate interest. Depending on the relevant ADR rules, it must be cumulatively demonstrated that the domain name holder lacks a legitimate interest and good faith in the domain name registered by him (UDRP, Slovak ADR rules), or it is sufficient if at least one of these conditions is met (EU ADR rules, Czech ADR rules).

The circumstances of individual domain disputes can vary significantly. In general, the stronger the legitimate interest of the domain holder, the weaker the position of the rights owner, and vice versa. In other words, the fact that a rights owner has a trademark identical to a domain name previously registered by a third party does not automatically mean that the rights owner will automatically succeed with his claim in the domain dispute. Needless to say, each case must be assessed individually in the light of its details and the relevant facts.

Notwithstanding the above, however, most domain disputes are quite straightforward. A typical scenario is that a domain name identical or very similar to a particular protected designation is registered by a person who intends to sell the domain name to a rights owner who wants the domain name identical or highly interchangeable with his trademark not to be held by anyone else.

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