What is Cybersquatting?
Cybersquatting is an offense related with the registration of a website domain name by an entity that does not have an inherent right or identical trademark registration to support its, with the sole goal to sell them to the client so as to acquire unlawful benefits.
Cybersquatting can be of different classifications, most usually observed is typosquatting, when a cyber-squatter registers website domain names containing a variation of popular trademarks. Typo squatters depend on the way that the users of the internet will make typographical mistakes when entering website domain names into their internet browsers.
Also, cyber squatters depend on the way that trademark holders frequently forget to re-register their website domain names, since website domain names registration is for a fixed period and if the proprietor does not re-register the website domain name before the lapse, at that point the domain name can be bought by anyone. Cyber squatters will grab up a domain name as it becomes accessible. This procedure is referred to as renewal snatching.
In India, cyber-squatting victims have a few alternatives to battle cyber-squatting. These alternatives include: sending cease-and-desist letters to the cyber squatter, bringing an arbitration proceeding under Internet Corporation of Assigned Names and Numbers tenets, or acquiring litigation in state or federal court. Whatever procedure the cyber-squatting victim chooses to utilize, that individual must not expel the serious impacts that cyber-squatting may have, if left unchecked.
In the Indian Legal system, there is no provision in the current or proposed Information Technology Act in India to penalize cyber-squatters, best case scenario is the domain can be taken back. In spite of the fact that there is no lawful compensation under the IT Act, .in registry has found a way to allow pay to victim organizations to stop squatters from further stealing domains. Most squatters anyway work under the guise of doubtful names.
A case could be filed with the .in registry taken care of by National Internet Exchange of India (NiXI) who brings the issue to fast track dispute resolution procedure whereby judgments are judgments in 30 days of filing a complaint.
Under NIXI, the IN Registry works as a self-governing body with essential duty regarding maintaining up the.IN ccTLD (country code top-level domain) and guaranteeing its operational strength, reliability, as well as security. It would actualize the different components of the new policy set out by the Government of India and its Ministry of Communications and Information Technology, Department of Information Technology.
In India, presently as there is no legislation or provision for disputes concerning domain names or cybersquatting hence, the Trademarks Act plays a powerful role in verdicts of the court. The Trade Mark Act, 1999is utilized for ensuring the use of marks which characterized the trade and can graphically separate between at least one or more trade of a similar kind. It is additionally essential to take note that the cybersquatting cases are chosen through the guideline of passing off/infringement.
Few Cyber-Squatting Case Remedies through Case laws in India
i) The remedy under the law of passing off
Satyam Infoway Ltd v. Sifynet Solutions 2004(3)AWC 2366 SC
The Hon’ble Supreme Court expressed that: “To the extent India is concerned, there is no legislation which clearly refers to dispute resolution regarding domain names despite the fact that the task of the Trade Marks Act may not take into account sufficient protection of domain names, this does not imply that domain names are not to be lawfully protected to the degree possible under the laws identifying with passing off.”
Yahoo! Inc. v. Akash Arora &Anr1999 IIAD Delhi 229
Yahoo Inc v. Akash Arora was a case where the plaintiff party looked for a permanent injunction to control the respondents from utilizing the trademark or domain name yahooindia.com or such misleadingly like the trademark “Yahoo" for any business purposes. The respondents contended that as Yahoo was not trademarked in India, there is no infringement, as it didn't fall under the meaning of goods under the Indian Trade Marks Act, 1958. However, the plaintiff party was allowed the injunction, as services rendered on Web are universally perceived as goods and Yahoo’s trademark should be protected.
ii) Remedy by transfer
Sbicards.com vs Domain Active Property Ltd
Sbicards.com was ordered by the World Intellectual Property Organization to be transferred to the Indian Company from an Australian entity, which steals the domain name planning to later pitch it for a large sum to the State Bank of India subsidiary. The board acknowledged SBI Card counsel’s contention that "the Australian organization was in the business of purchasing and selling domain name through its site.
iii) Recognition of domain name as registered trademarks
Rediff Communication Limited v. Cyberbooth and AnrAIR 2004 SC 3540
For this situation, the respondent had registered the domain name "radiff.com" which was like the plaintiff’s party's domain name "rediff.com". The rule in favor of the plaintiff party, the Court was of the view that the high significance and value connected to a domain name makes it a noteworthy corporate resource of any organization. The court proceeded to express that a domain name is significantly more than a web address and all things considered, is qualified for protection equivalent to that afforded to a registered trademark.
Indian Domain Name Dispute Resolution Policy
As India doesn’t subscribe into the Uniform Dispute Resolution Policy (UDRP), the IN Registry has put out the Indian Domain Name Dispute Resolution Policy. This is an obligatory dispute resolution strategy for dispute resolution connecting with .in extension. It is intriguing to take note of that INDRP has detailed on the lines of UDRP itself and other allied acknowledged worldwide accepted rules. The INDRP has additionally joined certain significant provisions of the Indian Information Technology Act, 2000.
Methodology under Indian Domain Name Dispute Resolution Policy
The accompanying strategies are followed to decide the dispute after a grievance has been received by the .in registry
a. An arbitrator is selected out of the list of arbitrators kept up by the Registry.
b. The Arbitrator issues a notice to the other party with 3 days of the objection.
c. Following which the arbitrator directs the procedures as provided under the Arbitration and Conciliations Act 1996 and furthermore bears due respect to the approach and guidelines provided under INDRP
d. The arbitrator will pass a reasoned award in 60 days and will send a copy of the award to the complainant, the other party and the .in registry. Even though under exceptional conditions, the award might be passed after 60 days however not surpassing an additional 30 days and the reason behind such postponement will be recorded in writing by the arbitrator.
Indian Cases under Indian Domain Name Dispute Resolution Policy
Youtube LLC v. RohitKohli
The defendant registered a domain name www.youtube.in, a name whose trademark lies with the complainant as "YOUTUBE". The complainant had presented that he had applied for the trademark in various nations and even in India. As the domain name was phonetically, outwardly and conceptually matching to that of the complainant's well known and distinct trademark "YOUTUBE". Consequently, the Board directed that the domain name be transferred on payment of a necessary charge to the registry.
Conclusion
The Information Technology Act, 2000 or the Trademarks Act, 1999 or the Arbitration Act, 1996, does not have a definition for cybersquatting. In India, it has been seen that people register domain names containing marks of other's trademark since they realize that the repercussions are not exactly serious. Therefore, there is an urgent requirement for the strict laws in this field, with the goal that these squatters could be penalized and these violations could be avoided in the future. The new domain name dispute law must be proposed to give trademark and service mark proprietor’s lawful cures against respondents who get domain names “in bad faith" that are matching or confusingly like a trademark. Also, the plaintiff party may choose statutory damages and has the choice to grant in damages for bad faith registration. It must act as a vital weapon for trademark holders in securing their intellectual property in the online world.
Author:
Leave a Comment
Previous Comments