Domain Name Law

Domain Name Law

Domain name law is not your average area of law. In fact, you could say it is not an area of law at all. It is only possible to have certain rights to a domain name if you have another right, such as a trademark and/or trade name right.

Domain name law determines who can have which rights to a domain name. Who owns a domain name? Is a domain name receptive to transfer? How can you take over a domain name? What rights does a domain name holder have? And can you claim a domain name?

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What is a Domain Name?

A domain name is a name that refers to an underlying numeric IP address. This IP address is an address of a ten-digit computer connected to the internet. The IP address is comparable to a telephone number. Because this IP address is difficult to remember (and is therefore not commercially attractive, among other things) domain names are used.

In many cases, a domain name is created using existing trade and/or brand names, so that the website is easy to find. In some cases, this may result in a trade name and/or trademark infringement. 

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Trade Name Infringement with a Domain Name

There can only be a trade name infringement if both plaintiff and defendant use a name as a trade name. This means that both plaintiff and defendant must use a trade name to distinguish a company.

When a third party’s trade name is included in a domain name, there may be a trade name infringement. Namely, if the domain name is used as a trade name. This means that the other person must conduct business under the name of the domain name. This is not always the case. A domain name with a trade name incorporated, which for example links to another website, clearly using a different trade name, is permitted under trade name law. The same applies to the registration of a domain name without the operation of a website. 

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Trademark Infringement with a Domain Name

This is slightly different in trademark law. A brand offers different protection than a trade name. Even if a domain name containing a brand is not used as a trade name, there may still be a trademark infringement. Trademark infringement only requires that there is (confusing) use of the trademark in economic transactions. This will often be the case in the case of a domain name. After all, products and/or services will often be offered on the website under the domain name. Linking the domain name (containing a brand) to another website on which products and/or services are offered can also lead to the use of the brand in economic traffic – and therefore in some cases constitutes trademark infringement. 

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