Check .lt domain

How to secure the claim?

The provisional safeguards have to correspond to the probably justified requirement of the claim. Since the requirement of the claim in the disputes regarding the domain name is focused on the deletion, trade or cession of the disputable domain to the claimant, the dependence of the disputable domain to defendant has to be ensured until the end of the proceedings.

The disputable domain’s dependence to the domain holder who is the defendant in the case can be secured by prohibiting the defendant to delete the disputable domain or cede the rights to the domain to another person. Even when the claim’s requirement is related to the obligation to delete the disputable domain, it is requested to apply provisional safeguards – prohibition for the defendant to take actions for the deletion of the disputable domain until the ending of the proceedings. Without the prohibition of the deletion of the disputable domain, the disputable domain may already be deleted during the main proceedings of the case, as if the defendant met the claimant’s requirement in good will after the submission of the claim and the judgment seems irrelevant to that extent. However, the defendant retains the priority right to create domain with the same name within 30-day “quarantine” period and after the ending of “quarantine”, if the defendant does not create domain, it becomes available to any person, including the defendant under the principle “first come, first served” (if there is no final judgment with regards to the defendant).

Domain trade is the only possible procedure, when domain holder cedes the rights to the domain to another person at his / her own will. Domain trade is a generic concept including purchase, donation, exchange and other transactions that result in the change of the domain holder. It is not correct to think that domain holder can be changed under the simple data change procedure. It is relevant while making decision regarding the scope of provisional safeguards: securing of the claim does not require restriction of data change, because changing of the domain holder’s contact data in .lt WHOIS database would not influence the enforcement of judgment.

.lt registry, gaining registrant or servicing registrar may be unaware of the prohibition of the defendant’s right to the domain trade, if they are not notified. In such a case, the initiation of the domain trade procedure depends only on the honesty of the defendant (domain holder). The most effective way to prevent the illegal domain trade is restriction of the possibility to initiate the domain trade procedure. For this purpose, besides the prohibition for the defendant to cede the rights to the disputable domain, at the claimant’s request, another provisional safeguard is applied – obligation for .lt registry to make entry in the public register (i.e., .lt WHOIS database) about the prohibition of cession according to Article 145 part 1 paragraph 2 of the Code of Civil Procedure of the Republic of Lithuania. In case of a failure, so-called cyberflight remains possible.

Therefore, the cases regarding .lt second level domain name could contain the following defendant’s request regarding the application of provisional safeguards: to prohibit the defendant to delete the domain [accurate domain name according to the entry in .lt WHOIS database] until the date when the judgment for the case processed by [court or arbitration, whichever processes the case] comes into force, to sell it, donate or otherwise trade to the third parties (except for the claimant), pledge, rent or otherwise impede / restrict the rights to the specified domain; to oblige the Internet Service Centre of Kaunas University of Technology (.lt registry) to make an entry in .lt WHOIS database regarding the restriction of disposal.

Obviously, in case of the dispute regarding the second level domain name created in another top-level domain (for example, .eu, .com, etc.), there cannot be such obligation for .lt registry, because the registry does not manage WHOIS databases of other top-level domains.

Detected mistakes in practice:

• Procedural documents not always contain accurate name of the disputable domain. In such a case, an accurate domain name should be indicated based on the data provided in .lt WHOIS database, because mistakes could cause loopholes in the application of provisional safeguards. For example, Vilnius Regional Court prohibited the defendant to cede or otherwise restrict the rights to the disputable domains, including a domain name written in Lithuanian, in the civil proceedings No. 2-8623-104 / 2010. However, the defendant had an “incorrectly spelled” domain instead of the indicated one and the provisional safeguards were not applied to that domain. Soon the claimant applied to the court regarding the security of the claim, stating that the defendant had allegedly ceded the rights to the unrestricted “incorrectly spelled” domain to another person. Even though there was no cession according to .lt WHOIS data, the court stated in the case No. 2-539-104 / 2011 (new number of the same case) that the defendant failed to follow the court’s prohibition and, at the claimant’s request, assigned the enforcement of the primary judgment with regards to the remaining disputable domains to .lt registry;
• Sometimes the claimants request to restrict the use of the disputable domain until the end of the proceedings, etc., even though the dispute is related to allegedly illegal use of the label instead of the content. Courts reject the unjustified requests. For example, the civil proceedings No. e2-4129-881 / 2016 in which Vilnius Regional Court rejected the claimant’s request for the restriction of the rights to use, manage and dispose of the disputable domains deleting the entries from DNS servers, based on the following reasons: “According to the case law, by applying provisional safeguards, the court also has to consider the possible consequences that could be caused to the claimant if these provisional safeguards are not applied while the claim is upheld, and the consequences that could be caused to the defendant, if these provisional safeguards are applied while the claim is rejected. In the view of the court, in the processed case there are no grounds to judge that the failure to apply additional provisional safeguards requested by the claimant would make the enforcement of the future judgment of the court impossible or aggravated. Whereas, if provisional safeguards are applied, it would certainly cause significant negative consequences to the defendant, because they would essentially mean the prohibition of the e-commerce performed via the defendant’s disputable domain. Considering this, the court rules that application of additional provisional safeguards in the processed case would violate the principle of proportionality and would not comply with the requirement to guarantee the balance between the interests of the parties while applying provisional safeguards”;
• In the civil proceedings No. 2-2277-431 / 2008 processed by Vilnius Regional Court, the claimant formulated a request regarding provisional safeguards that was too vague and unrelated to the requirements of the claim, i.e., exceeding the claim: to oblige .lt registry to refuse to register the domains which names contain a specific label, its various grammatical forms or derivatives with this label. The court rejected this request: “the request exceeds the submitted claim and the requirement is formulated for the third party”;
• In some cases the claimants requested to assign .lt registry with performance of provisional safeguards that do not correspond to its competence. For example, when the defendant is prohibited to pledge the rights to domain, .lt registry makes an entry on the restriction in .lt WHOIS database according to the judgment, but establishing of a pledge should be approved by the notaries, and .lt registry does not directly influence their activities. Whereas compliance with the prohibition to “rent or otherwise impede the domain” depends on the defendant, because these processes are not controlled by .lt registry. The same can be said about the prohibition to publish the information on the website applied to the defendant. For example, civil proceedings No. 2-3223-565 / 2008 processed by Vilnius Regional Court included application of provisional safeguards, including the following: “to prohibit to publish any information on the website […] until the end of the civil proceedings”, and enforcement of this judgment was assigned to .lt registry. The restrictions set by the court are recorded in .lt WHOIS database, however, .lt registry does not publish or store the defendant’s information (does not provide the information hosting services), the defendant is not accountable to .lt registry, therefore, the latter cannot control the publishing of the information, particularly, when it is not even clear if it is prohibited to publish new information or required to delete all the information, including the previously published one. In case not only the domain trade possibility is restricted, but also the accessibility of the disputable domain including all the website’s content and email, if it is justified and proportional, it should be requested to make an entry in .lt WHOIS database regarding the restriction of the defendant’s rights (as previously specified), as well as entries regarding the disputable domain deletion from DNS servers.