What to do when someone else is listed as the subscriber of your domain?
We will describe a fairly common issue in the domain world, which may also be affecting you. It concerns a situation where you once asked a friend, an IT specialist at work, or maybe a partner, to register an internet domain that you are using up to this day. Probably the domain registration went hand in hand with setting up a website and hosting. You did not discuss the domain-related details, because you thought there was no need to do so. Back then you thought “After all, they’re my friend, so what could go wrong?”. It simply did not occur to you to think about it in detail. You figured you would not have to worry too much.
Now imagine that years go by. Your website is developing, it is recognizable and becomes the primary source of your income. In the meantime, your friend became your enemy, the IT specialist left for Mexico and disappeared, or you parted ways with your partner in an argument.
The realization of what happened comes when you need to change or transfer your domain delegation. Maybe the person who registered the domain suddenly remembered it, noticed that it gained value, and started blackmailing you, or put it up for an auction? After all, you have not discussed any details. Remember?
Are you left wondering what you can do if someone else is a domain subscriber? You will learn about it in this article.
Who is a domain subscriber and what are their rights?
A domain subscriber is a natural person or organization that has the right to manage a given registered domain name. The subscriber does not purchase the ownership of the domain but acquires the right to use it as part of a subscription for a specified period of time.
Assuming that you commissioned the registration of your domain to someone else, but that person registered it using their data and did not assign it to you, according to law you are now a third party and you have no rights to it. However, the successful conclusion of a registration contract does not mean that its performance does not infringe the rights of third parties. There are legal regulations and provisions in the regulations of registrars (authorities supervising specific domain extensions) that may allow you to regain control over the domain.
Why is it important for you to appear in the system as a domain subscriber?
As the domain subscriber, you have full control over it. You can manage it, i.e. change its assignment (change of owner) or transfer it to another registrar if, for example, the current terms of service no longer suit you or even when the registrar ceases to exist. If you are not a legal subscriber of the domain, you may be exposed to the risk of someone selling your domain, disabling it, or even deleting it. As a formal domain subscriber, you can conveniently administer it without worrying that something bad will happen to it one day.
Therefore, at the beginning we would like to warn you that if you have commissioned someone to manage your domain, but you are not sure if you are its subscriber, contact this person as soon as possible, clarify it and if not, ask them to assign it to you. You will find the current domain subscriber data by logging into the domain administration panel. You can also contact your domain registrar and ask them if you are a formal subscriber. Information about the domain registrar can be found in the WHOIS database.
Contact the formal subscriber of “your” domain
If you have determined that you are using a domain while not being its subscriber, the obvious and most convenient solution is to contact the current subscriber and ask them to reassign the domain to you. But it is not always easy.
Try to find the contact details of the person who registered the domain, even if it is an old friend of yours. Perhaps the data was once entered in the domain's administration panel (e.g. as a different identity), to which you had access together, and it is still valid.
If you do not know where the domain was registered and the person registered as its formal subscriber, you can try to use the WHOIS database. The WHOIS search engine will show the data of the subscriber if they registered the domain, e.g. .pl, .eu, using company data. If the domain was registered for a natural person, this data will not be publicly available, because it is protected by GDPR. In the case of global domains, only the registrar's data will be visible. The subscriber's data will not.
If you manage to find the registrar of your domain, you can ask them if they can facilitate contact with the subscriber. Mention that the subscriber used to manage your domain, but you are unable to contact them and need help in order to be able to regain control.
However, whether the registrar will provide you with any help depends mainly on the prevailing service policy. Still, it is always worth asking the registrar to try to contact the subscriber and let them know that you are trying to get in touch. It would also be a good idea to give your registrar your contact details so that they can pass them on to the domain subscriber.
Communicating with the person managing the domain is the fastest and easiest way to regain the rights to manage it.
But what to do when contact is not possible or attempts to reach an amicable agreement are unsuccessful?
Take the case to court
If contacting a formal domain subscriber proves impossible or you cannot reach an agreement, the solution may be to refer the case to court. There are several institutions to choose from:
Common court – in this case, the proceedings are conducted with regard to the national .pl domain. The trial may take a long time (even several years) due to the slow speed of the courts. There is a risk of rational settlement of cases, if only due to the lack of knowledge about how domains function. The advantage of this solution is the possibility of pursuing claims for damages. The cost of initiating the procedure starts from 100 PLN.
Arbitration court – proceedings last much shorter, on average from 3 to 6 months. Most of the correspondence can be sent electronically, there are no hearings and it is difficult to delay the proceedings. In the case of .pl domains, in the event of a dispute, the subscriber has to submit to the jurisdiction of the court of arbitration. Arbitrators are competent to consider matters related to domains. The cost of a hearing varies from several hundred to even several thousand PLN. Depending on the court and how the dispute is resolved, a fee may be required for both the claimant and the defendant. You will not be able to file any property claims (e.g. damages) before the court of arbitration.
If you decide to go to court, the optimal solution will be to use a court of arbitration. Arbitrators have extensive experience in domain disputes, which may contribute to a quick and professional resolution of your case. And this will be especially important if you need to regain control over the domain as soon as possible, for example in order to transfer it to another registrar. However, after a quick consideration of the case, if the arbitration does not rule out further court proceedings, you can use the common court and there, without haste, pursue property claims.
Using an arbitration court has one more key benefit – the domain in question is blocked for the duration of the proceedings. This means that the domain subscriber will not be able to perform any operations on the domain. This prevents modification of the registrar's data, without affecting the possibility to renew the domain.
What is the difference between mediation and arbitration?
Domain disputes in arbitration courts can be resolved in two ways:
Mediation is an informal and voluntary process. It is based on the fact that an impartial mediator helps the parties resolve their dispute, taking into account the business interests of the party. The mediator cannot impose his decision on the parties. The agreement of the parties, if reached, has the legal force of the contract. Mediation leaves open the possibility of further judicial or arbitration proceedings.
Arbitration is a voluntary procedure that allows the parties to bring a dispute to one or more arbitrators for a binding verdict. The arbitration may preclude further legal proceedings.
Settlement of disputes over .pl domains
In Poland, the party filing the claim may file an infringement of exclusive rights on the basis of:
trademark rights (otherwise known as industrial property rights),
protection of personal rights,
committing an act of unfair competition,
infringement of company rights.
There are two courts of arbitration in Poland that resolve domain name disputes:
Court of Arbitration for Internet Domain Names at the Polish Chamber of Information Technology and Telecommunications. Before commencing mediation or arbitration proceedings, the claimant should notify the court in writing of the intention to initiate proceedings. You can send the application electronically or by traditional mail to the data provided on the website.
Court of Arbitration at the Polish Chamber of Commerce in Warsaw. It is the most recognized and reputable arbitration court in Poland. Almost 20% of cases are international.
Optionally, you can refer the matter to the WIPO Arbitration and Mediation Center. It is a court in Switzerland, which is the proper place for submitting disputes, where two parties are domiciled or based outside Poland.
According to the NASK regulations, the subscriber who has been sued is required to sign the arbitration clause within the time limit specified in the summons to sign the clause. Signing the arbitration clause is tantamount to accepting the arbitration clause, which is the basis for resolving the dispute. Failure to sign results in the termination of the domain registration agreement after three months from the date set for signing the subscription, however, this may not apply to subscribers who are consumers.
Excerpt from the Terms and Conditions concerning the .pl domain. Source: https://www.dns.pl/en/pl_domain_name_regulations
Resolving disputes over global domains
In the case of global domains, the path of action is more limited. You can rely on the dispute settlement procedure only if there is a conflict of registration of internet domains with trademarks and when you have evidence that the domain was registered in bad faith.
The procedure for resolving disputes arising from the registration and use of global domains is the Uniform Domain Name Dispute Resolution Policy (UDRP), implemented in 1999 by ICANN (the institution responsible for assigning Internet domain names).
In order to recover a global domain, you can submit a case to the WIPO Arbitration and Mediation Center. The proceedings are conducted in English, and the claimant may request the removal of the domain from the registry or the transfer of the domain management rights.
However, to be able to initiate the procedure, you must prove that the three conditions of the dispute resolution rules apply:
“4. a. Governing Disputes. You are obliged to submit to mandatory administrative proceedings in the event that a third party ("complainant") determines with the appropriate Service Provider, in accordance with the Regulations, that
(i) the user's domain name is identical or confusingly similar to the trademark or service mark to which the complainant is entitled; and
(ii) you do not have any rights or legitimate interests with respect to the domain name; and
(iii) Your domain name has been registered and is being used in bad faith.
In administrative proceedings, the complainant must prove that each of these three elements is present.”
Resolving disputes over .eu domains
In the case of .eu domains, the matter will be settled by the Czech Arbitration Court in Prague.
The Arbitration Court conducts alternative dispute resolution on the basis of the regulations, rules, and regulations of the European Commission. Sending correspondence, as well as the case, takes place in electronic form, so you do not need to travel to Prague. You also do not need to know the Czech language as the case can be brought in the mother tongue of any member of the European Community.
In accordance with Article 22 of the Commission Regulation (EC) No. 874/2004 of April 28, 2004, on the rules governing the .eu domain:
“An ADR procedure may be initiated by any party where:
a) the registration is speculative or abusive within the meaning of Article 21; or
b) a decision taken by the Registry conflicts with this Regulation or with Regulation (EC) No 733/2002.
2. Participation in the ADR procedure shall be compulsory for the holder of a domain name and the Registry.”
The dispute is resolved by a team of arbitrators specializing in copyright, and the proceedings take up to several months. If the court finds that the .eu domain rights have been infringed, it will take it away from the existing subscriber and hand it over to the other party to the dispute.
Settlement of disputes over national domains
Apart from UDRP, there are different rules of conciliation in the field of disputes over domains with national extensions. They are supervised by the Arbitration and Mediation Center at WIPO. The problem when trying to regain the right to manage a national domain lies in the fact that individual countries may have individual case-resolution procedures.
WIPO has been a mediator in resolving domain disputes since August 3, 2000. It runs under the WIPO ccTLD Program Background which was initiated by sending a message to the administrators of all ccTLDs. You can find a list of national extensions for which the WIPO Center provides dispute resolution services here. At WIPO, you can also initiate proceedings related to the .pl domain.
On the WIPO website, you can acquaint yourself with alternative dispute resolution methods (compared to common court proceedings). These include, for example, mediation, arbitration, and accelerated arbitration. You can also consult the customer service department – which will help you solve your individual case – https://www.wipo.int/amc/en/#contact
The most important thing you should always keep in mind when entrusting someone to register a domain on your behalf is to make sure you are registered as the subscriber of the domain. If you maintain a relationship with the current subscriber of your domain, contact them as soon as possible and ask them to assign the domain to you. Failure to act while it is possible will work against you. The potential need to prove that you have managed the domain over the years can be time-consuming, costly, and sometimes ineffective for you.
If you fail to change the subscriber amicably, you will have to resort to court assistance. You can choose a common court or an arbitration court. Which one is worth choosing depends on e.g. the domain extension, how quickly you want to get the result of the trial, and how much money you are willing to spend.
It is worth noting that a subscriber of a .pl domain at the time of its registration is required to submit to an arbitration court. If he does not, their domain rights will be revoked and the domain registry will terminate the registration agreement.