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  • Kumari Neha

CYBERSQUATTING IN INDIA – GENESIS & LEGAL SCENARIO

Updated: Apr 14, 2023

Written by: Kumari Neha (B.B.A.LL.B 4th Year), ICFAI UNIVERSITY, DEHRADUN


Introduction

Cybersquatting is the practice of registering an Internet domain name that is likely to be desired by another person, business, or organisation in the hope of selling it to them for a profit. It entails the registration of trademarks and trade names as domain names by third parties who do not own the rights to such names. Cybersquatters are motivated by money. The cost of registering a domain name is low; however, once registered, revenue can be generated by publishing advertisements on the webpage, such as pay-per-click advertisements.[1] Simply put, cybersquatters (or bad faith imitators) register third-party trademarks, trade names, business names, and so on with the common goal of trading on the reputation and goodwill of such third parties by confusing customers or potential customers, and at times, even selling the domain name to the rightful owner at a profit.

The internet has ushered in a revolution comparable to the nineteenth-century industrial revolution. The internet was first introduced as a communication tool for the masses, but within a few years, it evolved into one of the most important tools of modern communication, whether for business transactions, governmental policies, social interaction, or anything else. It has vastly expanded the reach of technology and data acquisition. It has created opportunities for millions while also creating liabilities for many, particularly in the fields of intellectual property, data privacy, and so on. The Internet has evolved into a very powerful tool, capable of creating jobs, shortening product life cycles, and avoiding international trade barriers. The challenge that the law has faced in recent years is how to encourage the development of intellectual property on the Internet while preventing its unauthorised use.

As previously stated, the internet has become an important tool in business transactions and has facilitated the genesis of many business model patents. This article will discuss the Domain Name aspect of the internet. It would also provide a brief overview of domain name-related court cases in India and the United States.

DOMAIN NAMES

Every Internet resource, such as a web page or a file of information, has its address, which is known as the Uniform Resource Locator URL. A domain name is a part of the Internet address that is assigned to each computer or service. The domain name system converts names into a series of numbers or IP addresses. These numbers are then associated with a simple-to-read and remember address - the domain name. The domain name does not need to change if the computer or service changes, but the series of numbers will. The domain name is meant to be more meaningful to humans than a string of numbers. The above-mentioned numbers are associated with the domain name "rs. internic.net." People who use domain names can thus choose names that are easily remembered and, more importantly, easily recognisable in cyberspace. The domain name first-come, the first-served policy is a hotbed for opportunists who do not have trademark registration or any inherent rights to "hack" or "occupy" domain names. Today, domain names act as online trademarks, source identifiers, and quality and goodwill repositories.[2]

The Internet Corporation for Assigned Names and Numbers (ICANN) is in charge of top-level domain name administration. To assign a domain, NSI employs a multi-level system that includes top-level domains (TLDs) such as.com and.net, which are considered globally generic. These cybersquatters bet on the possibility that users will misspell the original brand and be directed to their page.[3] The first step in acquiring a domain name is to contact the TLD administrator; if the identical requested domain name is not already in use, the name will be approved by the administrator. The assignment of IP addresses and domain names on a global scale is handled centrally. There is a specific registration procedure that must be followed. The Internet Assigned Numbers Authority (IANA) is the central internet authority in charge of allocating IP addresses and domain names via the INTERNIC.

Example of domain name

  • WWW` means that the site is linked to the World Wide Web

  • Any trademark name is the name you choose for your website, ideally, it is easy to identify with the name of your organization or main business.

  • com` means the name of your main organization or business

  • in` means the company is registered in India

The distributed database contains a list of domain names and their corresponding addresses and performs the function of mapping domain names to their digital IP addresses to connect requests to computers on the Internet. DNS is built hierarchically, allowing for decentralized management of name-to-address mapping. Own a domain name. Therefore, the squatter violated the trademark owner's right to use his trademark. In this sense, cybersquatting violates the basic right of trademark owners to use their trademarks[4].

DOMAIN INDIA’S LAWS

In India, unlike many other developed countries, there is no Domain Name Protection Law, and cyber-squatting cases are decided under the Trade Mark Act, of 1999.

Although Indian courts have distinguished trademarks and domain names; including the Honourable Supreme Court of Satyam Info way Ltd and SafeNet Solutions Pvt Ltd; AIR 2004SC3540 noted that "the difference lies in the way the two works. Trademarks are subject to the country/region where the trademark is registered Legal protection. Therefore, a trademark can be registered multiple times in many countries/regions of the world. On the other hand, because the Internet allows access without geographic restrictions, domain names can be accessed regardless of the geographic location of consumers The result of this universal connection potential is not only that domain names must be exclusive globally, but national laws may not be sufficient to effectively protect domain names. "

Although Indian courts have admitted that there are loopholes, in the absence of clear legislation, the courts apply the provisions of the Trademark Law to such disputes. The arbitration tribunal further pointed out in this case (above), “As far as India is concerned, there is no explicit reference to the legislation to resolve disputes related to domain names. However, the operation of the 1999 Trademark Law itself is not extraterritorial and may not allow the use of domain names. Adequate protection does not mean that domain names should not be protected as much as possible under the laws related to the transfer."

It is common practice for companies to wish to obtain such domain names, which can be easily identified by their established trademarks. This helps the public to identify the company because there is no physical contact between the two. Domain names and trademarks are interrelated. If a company or individual has registered a domain name that is similar or identical to someone else's trademark or domain name, try to sell it for profit. This is called "cyber-squatting."

Dispute Resolution

Disputes involving malicious registration are usually resolved through the Uniform Domain Name Dispute Resolution Policy (UDRP) process developed by ICANN. Under the UDRP, WIPO is a leading domain name dispute resolution service provider recognized by ICANN and was established as a tool to promote the protection, dissemination and use of global intellectual property rights. India is one of 171 WIPO member states in the world.[5]

A person may file a complaint with ICANN's listed administrative dispute resolution service providers under Rule 4 (a):

(i) the domain name "is the same or is easily confused with the trademark or trademark of service to which the claimant is entitled.

(ii) the domain name the owner/registrant has no legitimate right or interest in the domain name.

(iii) The domain name has been registered and misused.

Rule 4 (b) lists the following four situations as evidence of malicious registration and use of a domain name:

(i) indicates that the domain name owner/registrant has registered or obtained the domain name. The domain name is used primarily as a trademark or a claimant of the service mark owner to sell, rent, or transfer the domain name registration; o Provide a competitor of the plaintiff with valuable consideration that exceeds the recorded out-of-pocket costs directly related to the domain name

(ii) The owner/registrant of the domain name has registered the domain name to prevent the owner of the trademark or service mark from reflecting the trademark in the corresponding domain name, provided that he has incurred a pattern of such behaviour.

(iii) The primary purpose of the domain name owner/registrant registering the domain name is to interfere with the competition's business; or

(iv) By using the domain name, the domain name owner/registrant deliberately attempts to entice Internet users to visit its website or other online location for commercial interests, which may confuse the website or the location of the domain name owner/registrant or the source, sponsorship, affiliation or endorsement of the product or service on its website or location with the claimant's trademark[6].

Under In Registry, disputes are resolved by the.IN Domain Name Dispute Resolution Policy (INDRP) and INDRP procedural rules. These rules describe how to file complaints, costs, communications, and the procedures involved[7].

Role of Judiciary

Although domain names are not defined in any Indian law or protected by special laws, Indian courts have applied the 1999 Trademark Law to such cases.

As in other cases under the Registered Trademark Act of 1999, there are two types of exemptions:

1. Infringement remedy

2. Imitation remedy

Infringement remedy: The trademark law allows the trademark owner to use it only after the trademark is registered. Remedy for infringement. Transfer relief: If the owner wishes to obtain relief, there is no need to register a trademark.

CASE STUDY

The following are well-known cases of cybersquatting that occurred in India

  1. Yahoo Inc. v Akash Arora & Anr.[8]

In the famous case of Yahoo, Yahoo! USA filed suit against an Indian defendant, who registered a similar domain name Yahooindia.com and used his trademark. All content on the Yahooindia.com website is very similar to that of Yahoo. Delhi High Court passed an order prohibiting defendants from using Yahoo as their trademark or domain name because they infringed on their copyright. Throughout the incident, the Indian court held that domain names enjoy the same protection as the trademark and noted that trademark law also applies to the virtual world. This practice is called cybersquatting, and it started when most organizations didn't know the business on the Internet platform.

  • Rediff Communication Limited v Cyber booth[9]

Another judgment related to cybersquatting was the Mumbai High Court's booth at Rediff Communication Limited v. Network. In this case, the defendant registered its domain name as "radiff.com", which was similar to the plaintiff's domain name "rediff.com". The court determined that the domain name was in favour of the plaintiff, and the domain name was similar to the plaintiff's domain name "rediff.com". Contains the same value as the corporate asset to which the brand value belongs. Some people say that a domain name is much more than an Internet address, it enjoys the same protection as a registered trademark.

  • Tata Sons Limited and Anr Vs fashion ID Limited[10]

Using the same or similar domain names can cause users to transfer, which may be because these users mistakenly accessed one domain name instead of another. This can happen in e-commerce due to its rapid development and instant (and unlimited pornographic) accessibility to potential users and customers, especially in specific areas of overlap. If ordinary consumer users accidentally visit a different but similar website that does not provide such services, they may be confused. These users are likely to conclude that the first owner of the domain name has misrepresented their goods or services through their promotional activities and, as a result, the first owner of the domain name will lose their customers. It can be seen that a domain name can have all the characteristics of a trademark and can be considered fake. "

  • Aqua Minerals Limited Vs Mr Pramod Borse & Anr[11]

Unless and until someone has a credible explanation as to why they chose a particular name to register as a domain name, or for this purpose as a business name that has been around for a long time and established its goodwill and reputation does not exist except that the person wants to exchange In addition to the name he chooses to register or use as the business name of the domain name, another inference can be made because it is an established name with a wide reputation and goodwill, obtained through the huge costs and expenses involved. In the advertisement.

  • Nestle India Limited Vs Mood Hospitality Pvt Limited[12]

In trademark matters at least, the injunction/injunction test traditionally understood in preliminary testing cases has been replaced by the comparative advantage test in competition cases. This also meets the requirements of the aforementioned Law, because it not only describes what constitutes an infringement (see: article 29) but also stipulates what constitutes an infringement (see: article 30) ... Therefore, In addition When reviewing the case in the context of Article 29 of the aforementioned Law only from the perspective of the defendant/plaintiff, it is also the responsibility of the single informed judge to consider the relative or comparative strength of the appellant. / The cases of the accused were carried out by article 29 and article 30 (2) (a) of the aforementioned Law.

Need for Definite Cyber Laws in India

1) To combat cybersquatting and sanction offenders, urgently needs to implement clear and strict laws.

2) The new law should include the legal relief of the trademark owner to the defendant so that the plaintiff can easily obtain legal damages and seek compensation for damages due to malicious registration.

3) A law is needed as a weapon to protect the intellectual property of trademark holders in the virtual world.

CONCLUSION

In India, various laws can be amended to criminalize cybersquatting. These laws include the Information Technology Act of 2000, the Trademark Act of 1999 and the Indian Penal Code of 1860. Alternatively, it can be added as a crime under the Information Technology Act of 2000 or the Indian Penal Code of 1860 or as a civil crime under the Indian Trademark Law No. of 1999. India may also be inspired by Nigeria to establish a regulatory agency similar to that envisaged in Chapter VI of the Law of Information Technology of 2000. This regulatory agency can be granted the power to hear cases of the domain name and cybersquatting disputes.

Regulatory standards and policies must continue to evolve as technology advances. 4,444 traditional industries and future industries increasingly rely on 4,444 IT-based services. Although India's law on cyberspace affairs is still in its infancy, it is easier to introduce major changes at this point so that we can quickly keep pace with progress.

The reason for the growing importance of the domain name system is e-commerce. The domain name is very important because a domain name can only have one user. Unlike the trademark law, for goods and services that cause confusion or dilution, there can be two or more users using the same or similar brand.

However, this type of provision does not apply in the case of a domain name. The domain system offers the first one in the first policy. When a person registers a domain name and similar brands, the other person is using a similar brand, it will be denied to another register of domain names similar to the Registered trademark This means that users who are allowed to use a specific domain name are just one person. This is the reason why should register the owner of the trademark registered the trademark as a domain name for the business.

Cyber ​​squatters have robbed the company’s wealth. Therefore, judging from the current situation in the world, it can be safely assumed that cybersquatting is a threat, a threat without borders. Due to unresolved issues and various jurisdictions under review, there is an urgent need to draft new legislation specifically for domain names in India. Section devised a three-pronged approach that would greatly help eliminate these squatters.

Reference [1] Jordan A. Arnot, Navigating Cybersquatting Enforcement in the Expanding Internet, 13 J. Marshall Rev. Intel. Prop. L. 321 (2014). [2] S. Ahmed, Cybersquatting: Pits and Stops, [2010] ILI Law Review [3] Jude A. Thomas, Fifteen Years of Fame: The Declining Relevance of Domain Names in The Enduring Conflict Between Trademark and Free Speech Rights, 11 J. Marshall Rev. Intel. Prop. L. 1 (2011) [4]JhnoJohn D. Mercer, "Cybersquatting: Blackmail on the Information Superhighway", 6 Boston University Journal of Science and Technology Law 11 (2000). [5] http://arbiter.wipo.int/domains/decisions/html/d2000-0365.html on 4 November 2012. [6] http://arbiter.wipo.int/domain/decisions/2000-0049.html on 4 November 2012. [7]http://arbiter.wipo.int/domain/decisions/2000-0049.html on 4 November 2012 [8] Yahoo!, Inc. vs Akash Arora & Anr. on 19 February 1999 Delhi High Court. [9] AIR 2000 Bombay 27. [10] Tata Sons Limited and Anr Vs fashion ID Limited (2005) 140 PLR 12; the Hon'ble High Court of Delhi [11] AIR 2001 Delhi 467 [12] AIR 2010 (42) PTC 514 Delhi

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