According to the applicable legislation in Bosnia and Herzegovina (BH), domains are not considered as intellectual property rights (IP). The owner of the national domain .ba is the state of BH and any legal or natural person is considered a user of the registered domains, for as long as the yearly maintenance fees are paid regularly.
The Internet Domain Name of an individual country belongs to ccTLD. We can often read that the state domain of the highest level is a valuable resource of every state and is one of the elements of state sovereignty and recognizability in the virtual world. The domain of BH is .ba – it was assigned to BH by IANA, in 1996.
The registration of the domain grants the exclusive right to use the registered name, with the obligation to pay yearly maintenance and registration fees. The act of registering a particular domain exhausts a specific combination of marks, as it is impossible for two identical domains to exist at the same time. No subjective IP arises (copyright, patent, trademark, or otherwise) based on the registration itself.
When a registrant registers the name of a domain, it acquires the right to use that domain. The question arises as to what specific right belongs to the registrant on the basis of registration: contract or ownership? Or both?
The right from the registration is of a contractual nature because it is established by the contract that the registrant concluded with the authorized register. The registrant’s right arises as a consequence of a contractual chain that begins with ICANN and ends with the registrant. First, ICANN authorizes a specific TLD registry operator to enter into agreements with authorized registries, and then the registrant acquires the right to use the domain based on the agreement with the authorized registry.
Further, the domain is an intangible asset and, as such, it cannot be owned in the classical sense of ownership of things. Also, it is clear that the name of a domain cannot be the subject of IP, given the fact that no law places it in the group of legally protected IP in BH. Thus, the proprietary character of a domain can only exist in one indirect sense, derived on the basis of an analogy to objects and IP.
Currently, it is impossible to provide a single answer to the question about the legal nature of the rights from the registration of domains. There are elements of both contractual and proprietary character, coming into play to a greater or lesser extent depending on the specific situation so that the perspective of the contractual-proprietary nature of rights arising from domain registration is the most acceptable.
Pledging, Acquiring, and Granting Security Over Domains
Are those possible when it comes to business transactions? The status of a domain is that it is not owned or held by legal entities, nor does it represent IP, therefore how can one pledge something they do not own? Domains are sometimes equated with other IP rights but such a view is incorrect. There is no valid legal basis to register and consequently to release such pledges, but this is not strictly prohibited, either. Relevant practices show this is practically quite possible in BH. Domains are often subject to business transactions and, together with IP rights, are the subject of the IP Pledge Agreement. The State IP Office is not the competent authority to grant pledges over domains, as these are not IP rights. However, regardless of the legal nature of domains and the fact that the owner of the national domains .ba is the state, relevant practices also show that, in business transactions, domains are usually established and registered as proprietary rights before the state pledge register maintained by the Ministry of Justice of BH. This is possible because this register technically accepts and does not exercise any kind of control over pledged movables and rights.
It is legally allowed, however, to register another entity instead – as the user of the domain, before the relevant authority that manages national domains. The right to use domains cannot lawfully be acquired outside this due procedure.
By Anisa Tomic, Partner, Maric & Co