The name of each website is called a "Domain Name". According to Electronic Communication Law1 the definition of domain name is made as follows: Internet domain name: The address of the computer or Internet sites on the Internet. The name that identifies the Internet protocol number used to determine2. A domain name can be created with infinity combination. A domain name specifically refers to a particular website hence forth the domain name is the identity of website. Domain names have quite important feature from the Electronic Communication Law: "The usufruct and usage rights such as internet domain names and the authorization of the operators cannot be confiscated in any way" 3. This feature shows that the domain names have significant protection by law.
In the rapidly developing world of technology, it is seen that domain names cause some problems in the legal dimension. The occurrence of both trademark copyright and personality rights violations with domain names has made this issue even more important.
Personality right violations may occur by converting the information constituting a person's first name and other personality right into a domain name by a third party4. A domain name is a right to be protected legally just like the right to personality. The relationship between domain names and personal rights violations arises in Article 26 of the Turkish Civil Code5. The article is regulated as follows:
II. Rights pertaining possession of a name
- Designation of a name
ARTICLE 26-The person who is subject to confusion in use of name may litigate in the competent court for establishment of his/her respective rights. A person subject to unjust use of his/her name may claim discontinuation of such act; where the person is in default due to use of the name unjustifiably, then he/she may demand recovery his/her tangible losses as well as indemnification of moral damages whichever the case may require.
The relevant article regulates the protection of the person's name. Person's name, surname, title or nicknames are considered to be personal rights and if they are used as a domain name by a third party, there will be an attack on the right to personality through the internet environment.
The protection of domain names is subject to different regulations in each country's law. While domain names are protected by personal rights in German law, protection is provided in accordance with the provisions of trademark law in Anglo-Saxon law systems, namely the law of England and the United States of America6. Domain names can be based on many shapes; If the domain names that have the title, nickname or the right to personality under Article 26 belong to a third party, then it will be possible to mention a violation of the right to personality.
The issue of transferring the domain name to the person comes up. If the person who creates the domain name using someone else's name proves to be malicious, he will also be liable to pay compensation under the general provisions.
As a rule, there is the principle that takes first come7. This means that whoever opens a website using the domain name first will be considered to belong to that person. Because of this principle, violations of personality rights occur through domain names.
The main problem arises with the registration of domain names. A system has been designed to prevent this problem. Uniform Domain Name Dispute Resolution Policy (UDRP)8 is the name of this system, which is designed to reach a universally valid result in dispute resolution. In the UDRP system, the person filing a complaint on a similar domain must prove the following conditions:
- Similarity leading to the same or affection
- The domain owner does not have any rights or any legitimate interest in this name
- The domain owner has registered this name with malicious intent and is using it maliciously
There are three ways in which the person who has infringed his or her right of personality due to the domain name opened by someone else if the above conditions are proven. These ways are cancellation of the domain name usage, cessation of the domain name usage and convey of the domain name usage. Generally the domain name is conveyed to name owner if the malicious is proven. If the domain names violates a brand which is a person's name then objections to domain violations are filed with the World Intellectual Property Office (WIPO)9.
In order to prevent violations of personality rights, "the priority principle" should be adopted instead of "the first-come principle". Failure to do so will result in the victimization of the person who has infringed his or her right of personality through the internet domain opened by the third party. The first-come principle causes violation of the rights to personality. If the first comer has malicious then the burden of proof of the violated right will arise. If the priority principle is applied instead of the first-come principle, violations of personality rights can be prevented, and the person who violates the personality right can protect his/her rights with this principle.
All in all, a decision should be made within the framework of law and in accordance with equity regarding violations of personality rights with the domain name.
1 Electronic Communication Law no 5809
2] Electronic Communication Law no 5809, article 3/1-v
3 Electronic Communication Law no 5809, article 34/1
5 Turkish Civil Law No. 4721
6 Oğuz, Habip; İnternet Ortamında Kişilik Haklarının İhlali ve Korunması, page 67
7 Internet Domain Name Regulation, article 8
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.