Imitation of a domain or a web page
When there is an infringement of competition in the form of imitation of a web page according to the practice of the CPC and the SAC
In this article we will consider a particular hypothesis of infringement of competition, namely the imitation of a domain or a website.
With the accelerated digitalisation of economic processes, commercial presence on the Internet is becoming increasingly important and even paramount. The Internet (including in Bulgaria) has long ceased to be the lightly regulated environment it was at the dawn of its development. This is visible from the fact, that since 2008 Bulgarian legislation has explicitly provided for the imitation of a website as an offence - in Art. 35, para. 3 of the Competition Protection Act (CPA) states as follows:
Art. 35 (3) It is prohibited to use a domain name or the appearance of a website identical or similar to those of other persons in a way that may mislead and/or harm the interests of competitors.
The text of the provision shows that the infringement can be committed in two varieties - by using a domain name or the appearance of a website which, by reason of their identity or similarity, are of a nature to mislead consumers or otherwise harm the interests of a competitor. And here are some further clarifications of the norm given by the Supreme Administrative Court (SAC):
"The factual structure of the prohibition provides for deception to occur in two main ways, either through a domain name or through a web page, where identity or similarity is assessed without the need for specialist knowledge and skills. The infringement requires the company's actions to be intentional and carried out in a way that results in harm to the interests of the competitor and/or consumers. It is sufficient for the offence to have been committed in bad faith and to have resulted in a potential risk of harm to the interests of competitors and/or consumers, rather than the establishment of actual deception."
The SAC applies a specific interpretation of the provision distinguished by the following main characteristics. First, the identity or similarity must be recognisable without special knowledge - that is, it must be visible to the ordinary consumer - precisely then it would create a risk for the competition. The deception must also be deliberately intended. Further, there may be an infringement even where the interests of a competitor are not affected, as long as those of consumers are harmed. Last but not least, the existence of an infringement does not require that a harm has actually resulted from the infringement - it is sufficient that there is a potential risk of harm.
Without purporting to be exhaustive, let us consider a few examples where, in my view, the infringements referred to would be present:
Domain abuse seems to be easier to understand. Since complete identity of two domain names is not possible, it is more likely that the legislator had in mind identity of names before extensions (.com, .bg, etc.). That is, let us imagine that there are two websites with the example names www.example.bg and www.example.com. On these sites two competing traders advertise their activities - for example in the field of design. In such a case, the trader, who has registered its domain later, would be presumed to have committed an abuse and its activities could mislead consumers or otherwise harm the interests of the earlier-registered trader. This would also be the case if the names were similar - for example www.example.bg and www.examples.bg. If the activities of the traders are again similar or identical, there would be an infringement. However, if the domain holders are not competitors, there should rather be no infringement. This would be the case if the trader with the older domain was in the design business and the trader with the newer domain was in the business of selling perfume samples. In such a case, the target audiences of the two merchants and the two websites, respectively, would not be in collision - even if a customer of the designer landed on the perfumery distributor's website, the user would easily understand that this was not the website he was actually looking for.
It is more difficult to give a specific example in relation to the infringement implemented by the layout of the appearance of the website. This is the case for many reasons, the main one being the variety of possibilities provided by modern graphic design. That is to say, whether there is identity or similarity in the appearance of a web page will have to be judged on a case-by-case basis. However, some of the SAC's more general guidance would also be helpful here. As already pointed out - this identity or similarity must be recognisable by the ordinary user without special technical knowledge and skills. Furthermore, it follows from the case-law of the Commission for the Protection of Competition (CPC) and of the SAC that similarities in the appearance of the pages "imposed by their functional purpose" and "which are due to the identical business activities of the parties" cannot justify an infringement. This may be a particular type of search engine or elements having a typical appearance because of the information they are intended to summarise - for example, a photograph, address and price range of a restaurant or hotel. Similarities arising from "a common approach to the construction of a website and normal commercial logic, and to a large extent from the automatic placement of elements in free-to-use website templates" should also not be treated as infringements.
What should you do in case you encounter problems like the above in your commercial practice? If you believe that your website is being imitated, you can protect your rights by referring the matter to the CPC, which could sanction the offender. You can also seek damages for the infringement in court proceedings. However, as it is clear from the above explanations, although the applicable legal rule is clear on its face, it has certain features which require a specific legal approach to understand. It is therefore highly advisable to consult a lawyer before taking any action to protect your rights. And this is because poorly prepared legal actions instead of success can bring you additional losses. If it turns out that there is no infringement despite your impression, you will have to pay the costs of the proceedings before the CPC and the court, which are usually not insignificant.
This article expresses a personal opinion of the author, which clarifies principle and hypothetical positions - i.e. the positions expressed should not be considered applicable in every particular case. Therefore, the text does not constitute and should not be construed as legal advice. If you require such advice, you may contact me at [email protected] .
