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DOMAIN NAME DIPUTES IN INDIA
The article tries to briefly outline the present structure of the Domain Name System, the problem relating to Cybersquatting in the cyberspace and the Domain Name Dispute Resolution Policy and mechanism reflecting of ICANN and the Indian scenario. What is in a name! That which you call rose by any other name would smell as sweet! -William Shakespeare In the emerging era of cyber world it is very important for a company to have an address in the cyberspace. This would require its registration under a particular domain name and website. As each computer has its own unique all-numeric IP address. It is very difficult to remember all numeric addresses which give us the essence of Domain Name System. Thus, the systematization of recognition of the proxy names is called the “Domain Name System”. Domain Names are becoming very relevant because consumers often perceive them as performing, in electronic commerce, much the same role as trademarks and tradenames have played in more traditional modes of business. Similar to the concept of trademarks disputes had arisen between the companies wanted to adopt the same domain name. As in the case of domain name only one owner can possess a particular domain name. In contrast, identical trademarks may be owned by numerous persons at a time till they have some sort of differentiation, which mark them off from each other. Under the current Internet system, one of the companies will not be able to include its trade mark in its domain name, since there can be only one <xyz.com>. CYBERSQUATTING Cybersquatting is a type of domain name dispute which is prevalent in the world. It is a practice where individuals buy domain names reflecting the names of a existing companies, with a sole intention to sell the names back to that company to attain profit when they want to set up their own website. There are various types of cybersquatting. Most commonly used is the typo squatting where a cyber- squatter registers domain names containing variant of popular trademarks. Typo squatters believe that the internet user will make the typographical errors while entering the domain names into their web browsers. Some common examples of typo squatting includes: The omission of the "." in the domain name: wwwexample.com;
A common misspelling of the intended site: exemple.com A differently phrased domain name: examples.com A different top level domain:example.org DOMAIN NAME Internet domain name is a combination of typographic characters used to describe the location of a specific location online. It is known as the Uniform Resource Locator or URL. It is considered the identity of a Web site. The Internet domain name is very important for the small businesses who want to establish their name on internet. The two organizations cannot have same domain names.1 Example – www.google.com ; www.yahoo.com, etc. 'WWW' means that site is linked to World Wide Web. 'google' is the name you choose to your site, and ideally is readily identifiable with your organization name or core business. '.com' is known as top-level domain name and it indicates that your organization name or core business. Sometimes '.in' is being used in place of '.com' that means that company is registered in India (For eg – ebay.in, olx.in, airtel.in, etc.) In the above example only google.com is being used shows search results from Global servers, Google.co.in is more targeted to local Indian Market. You will always see difference in search results for both cases on Google.co.in you will get results of more India related sites, who primary operate in or for India specific. The last two or three letters of a domain nameor URL (e.g.- .com, .in, .org ) are known as its top-level domain. The top-level domain which are used earlier are for Example '.org' generally describes a nonprofit, charity, or cultural organization site; '.gov' indicates a governmental site; and .net, which is most often used by network-related businesses. Some other common top-level domains are country codes, like .us for United States and .au for Australia, etc. Domain name registration system2 started on the basis of the "First come First serve" basis. The registrant authority which was initially the "Internic" did not take the responsibility for checking the ownership of the name. Later when the internet became popular, large popular companies wanted to
Easy access to customers and prospective customers. The existence of domain names without the requirement of the registration brought the concept of "first come, first served". This has created the disputes among the owners of the trademark because many speculators have started to register domain names in order to resell them for a higher price to the trademark owners. The problem arose with the trademark owners because of their entitlement to IP rights make them feel ripped off by this new practice named as "cybersquatting".3 Thus, anyone who wishes to register a domain for the first time which is trademarked can do so; whatever problems may arise will have to be faced later. The reason of the increase in the incidence is the growing importance of domain name in the e- commerce trend. Domain name hold a good importance as there can be only one user of a domain name unlike the trademark law where there can be two or more users of a same or similar trademark for various classes of goods and services under the honest concurrent use if such use does not amount to infringement or causing confusion or dilution. But this kind of provision is not applicable in the case of domain names. Since, the domain registration system follows the "first come, first served" policy. So, once a person registers a domain name similar to a trademark, any other person using a similar mark is denied registration of another domain name similar to that trademark. That means only one user is allowed to use a particular domain name and any other application for the same domain name will be refused. This is the main reason as to why trademark owners prefer to get their trademarks registered as their domain names for business. The cases of trademarks and domain names conflict mainly involve issues related to the use of goodwill of a trademark by an infringer in the domain name to divert the potential customers of the owner of the trademark to a website not associated with that trademark, or use of meta-tags resulting in dilution of trademark or unauthorized registration of the trademark as domain name with the intent to extort money or to prevent the owner from using the trademark. The Cyber squatters quickly sell the domain names to other non-related entities, thereby enabling passing off5 and diluting of famous trademark or trade names. India has a top level domain <.in> as listed in the ISO-3166. the second level subdomains registered under the <.in> domain are <.ernet>, <.nic>, <.net>, <.res>, <.ac>, <.co>, <.gov>, <.mil> and <.org>. The primary question, which in most cases, seeks answer of the question that “Whether domain names are equivalent to trademark, i.e., could the use of a domain name amounts to a trademark infringement?” Still it is not been clearly said by the judiciary that domain name is a form of property. Even if domain names are property, there remains question as to ownership and control. With the traditional notion of property, a domain name differs.
Now domain name disputes has also hit the Indian Courts. The most serious dispute among them is “Cybersquatting”, which is use of domain name by a person with neither trademark registration, nor any inherent right, to the name. There are many ways in which someone on the Internet could trigger the ire of an owner of a trademark or some other form of intellectual property. A web site could contain someone's registered trademark. A web site could pluck an image (a trademark, or a Dilbert cartoon) from some other site and incorporate the image into its own web page. A web site could contain material protected by copyright that has been copied from elsewhere without the permission of the copyright owner. A domain name could be similar to (but not identical to) some trademark. A third-level domain name (e.g. exxon.oil.com) could be identical to a famous domain name. Or a second-level domain name (e.g. exxon.com) could be identical to some trademark. Each trade mark domain name dispute includes three parties i.e. the domain name owner, the trademark owner, and the registration authority. Each party has interests differing greatly from those of the others. The domain name owner; For a domain name owner the predominant interest is predictability. The domain name owner doesn't want its domain name to be taken away precipitously any more than it wants to be evicted from its physical space or cut off from electrical power. For many Internet-related businesses, in fact, physical eviction or loss of electric power would be far more easily remedied than loss of the domain name. The trademark owner. For a trademark owner there are really two interest areas. The first arises if trademark infringement is going on, in which case the trademark owner would like to get the infringement stopped right away; a subsidiary concern is reducing the cost of getting it stopped. The second interest area arises solely as a consequence of the NSI policy, and involves the trademark owner that wishes it could have a particular domain name, and learns that the domain name has already been taken by someone else who isn't infringing the trademark owner's trademark. The domain name registration authority. The main interest of a domain name registration authority (of which there are several hundred around the world, one for each top-level domain) is getting its job done well. At present, about half a million domain names have been registered in the top- level domains administered by NSI; by comparison all of the other domain name registration authorities of the world combined probably account for only a few tens of thousands of domain names. This makes NSI's interests of particularly great concern, and NSI has stated many times in recent months that it is not only interested in getting its job done well, but is also interested in trying to avoid being sued. The first case that came up before the Indian Courts was Yahoo! Inc. v. Akash Arora nad Anothers [1999 PTC (19)210 (Delhi)]; in which an attempt was made to use the domain name <yahooindia.com> for Internet related services. So, the Plaintiff alleged that by using a quite similar domain name and format to their domain name i.e. <yahoo.com>, their must be a charge of deceit and “Passing off”. Thus, by looking at the passing off doctrine, the court granted an injunction restraining the
