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Cyber squatting and Trade issues: Domain Dispute Resolution

We are all leaving in a world of technology that not only makes things more accessible but also creates a daily challenge to compete in the market through a transformation within and around us. Over a period of time, we have witnessed the growth of the internet, businesses that are ruling the minds and hearts via the internet, making huge profits through their brands, whether it is education, top-brand clothes, organization, and many more.

These brands register their domain name to attract potential customers through which goodwill and reputation are created in the market. However, all these top brands face issues that, in legal terms, we call cybersquatting.

Cybersquatting

Cybersquatting is a practice by which an organization, individual, or company acts malafide or in bad faith to buy a domain name that resembles the original domain name with the intention of selling it to the proprietor of the brand mark or third party at an exorbitant profit or to harm the reputation. This Cybersquatting also known as domain-squatting.

Key points to remember about cybersquatting:

  • Infringer sells at an exorbitant profit, making huge profits.
  • By driving traffic to the website, endangering the company's reputation.
  • Use domain-squatting to spread malware and phishing scams.

Types of Cybersquatting:

  1. Typo squatting:
    This is a very common practice of squatting, as the squatter buys a misspelled domain name, in order to mislead the customers and this is done by adding/omitting a letter, name, or period causing disruption. Instances Consider a well-known brand name Facebook, whose URL is ww.facebook.com, however, what squatter will intend to do is to add/omit a letter or period like - www.facebookk.com (Addition of extra letter K) or wwwfacebook.com (Omission of the period dot).
     
  2. Grip site Cybersquatting:
    In this case, the squatter intent is to take personal revenge, show hatred feeling not only towards brand owner but in majority cases customers tend to lose interest in a particular brand, causing a huge depletion to brand owner. Instances - Microsoft.com can be portrayed as Microsoftsucks.com. Here are a few examples that can help you to understand.
     
  3. Look-alike domain cybersquatting:
    This is very common in today's times, as squatter buy domain them that are look-alike or add special character to it. Instances Amazon.com is a popular brand, the infringer will portray as Ama-zon.com/Amazon-site.com/Amazonshopping.com, etc.
     
  4. Celebrity name cybersquatting:
    This is also one of the common practices by a squatter, as they buy a domain with celebrity's name, create content to lure the customers to share their details, information about themselves, putting celebrity's reputation at stake, and later sell the domain name to celebrities at exorbitant price, making a profit. Many celebrities are victims of cybersquatters like Jennifer Lopez, Madonna. In the past, techies have squatter on domain names like salmankhan.com, amiabhbacchan.com.
     
  5. Homograph Attack:
    Homograph attacks are hard to find, as they will be difficult to identify if we don't know the domain name/brand name. In most cases, we find the addition of special characters/letters but in this, squatter makes a small change that is hard to find. Instances www.apple.com and www.appIe.com, on clicking both these URLs, you will see that one URL is of real apple and other is fake. The difference is the replacement of Capital I.
There is no legislation that deals with domain squatters. However, in the absence of legislation to resolve the domain name, owners can initiate a proceeding for passing off and infringement under Trademark Law, 1999 against the infringer.

The following options that are available to the victims of cybersquatting are:

  1. Trail before District/High Court.
  2. Arbitration under ICANN's (Internet Corporation for Assigned Names and Numbers).
    • UDRP (Uniform Domain Resolution Policy) by ICANN (International Level)
    • INDRP (India Domain Resolution Policy) by NIXI (National Level)
  3. Send cease and desist letters to Cyber squatters.

Let's proceed in detail with each resolution policy:
  1. Judiciary:
    The court had and still plays a prominent role in resolving disputes pertaining to Domain names. Even though there is no legislation that deals with Domain names, however, Judiciary standing strong in providing justice to the victim.
    • Cases: Rediff communication Ltd vs Cyberbooth & Another:
      The Plaintiff sought a permanent injunction restraining Defendant from using the mark 'www.Radiff.com' which is deceptively similar to plaintiff 'www.Rediff.com'. The Bombay High Court held that the Defendants adopted the domain name 'Radiff' with the intention to harm the plaintiff's reputation.
       
    • Yahoo! Inc vs Akash Arora & Another:
      First case on Domain law protection in India. The plaintiff here brought an action against the defendants for using the domain name Yahooindia.com which is deceptively similar to the plaintiff Yahoo.com. The Delhi High Court opined that the plaintiff made a prima facie case and hold defendants accountable for using the deceptively similar name Yahooindia.com. Hence, restrained the defendants from using the deceptively similar name of the plaintiff.
       
  2. Arbitration:
    INDRP by NIXI (National Internet Exchange of India) The disputes involving the registration of the .in domain name is resolved in accordance with.IN Dispute Resolution Policy and the INDRP Rules. As per INDRP, if a Complainant considered that a registered domain name conflicts with his rights, he can file a complaint with the .IN Registry against Registrant on the grounds that:
    • Registrant's domain name is identical or confusingly similar to a name, trademark, or service mark in which the Complainant has rights,
    • Registrant has no right or legitimate interest in respect of the domain name,
    • Registrant's domain name has been registered or is being used in bad faith. (All 3 factors are considered by the Arbitrator before pronouncing the Judgement, which must be proved by the Complainant).

      After a complaint has been filed by the Complainant,.IN Registry appoint an Arbitrator out of the list of Arbitrators maintained by it, who conduct a proceeding in accordance with Arbitration and Conciliation Act 1996, and award has been passed within 60 days.
       
    • Cases: Bloomberg Finance L.P vs Kanhan Vijay V:
      The Complainant Bloomberg Finance L.P, claims to be the registered proprietor of the service mark BLOOMBERG in India and in 95 other countries, and has been in business since 1981, that provide financial news and information to worldwide. The Respondent claimed a registered partnership firm Bloomberg Computers based in Nagpur, Maharashtra, dealing in computer hardware and network equipments. The panel, therefore, held the decision in favor of the Complainant.
       
    • M/S You Tube LLC vs Rohit Kohli:
      The Complainant stated that the Respondent copied his domain name Youtube. Before the panel pronounces its judgment, the parties arrive at a settlement. Hence, the panel made a decision according to the settlement/compromise between the parties.
       
  3. ICANN dispute resolution policy:
    The establishment of the ICANN (Internet Corporation for Assigned Names and Numbers) in 1998 as a worldwide internet administration and the introduction of UDRP (Uniform Domain Name Dispute Resolution Policy) in 1999 for effective and cost-saving international domain name disputes. This has been one of the most remarkable history happened in the past for solving international legal problems originating through the nature of the borderless internet on the one hand and intellectual property rights of some users on the other.
A trademark is defended by the laws of a country where similar trademark has been registered. Also, a trademark may have a multiple enrolment's in numerous countries throughout the world. Since the internet allows us for the access without any geographical limitation, a sphere name is accessible irrespective of the geographical position of the consumers.

This will be salutary for the universal connectivity which will grant sphere name worldwide exclusivity and also numerous times the public laws might be shy to effectively cover a sphere name.

The transnational regulation was effected through WIPO and ICANN. India is one of the 171 countries of the world which is a member of WIPO. Services handed by WIPO to its member countries include the provision of a forum for the development and perpetration of intellectual property programs internationally through covenants and other policy instruments.

Uniform Domain Name Dispute Resolution Policy ICANN has espoused the Uniform Domain Name Disagreement Resolution Policy (UDNDRP or UDRP), the policy for resolution of sphere name controversies. As per this policy, Plaintiff can bring an action on the grounds that:
  • A domain name is identical or confusingly similar to a trademark or service mark in respect of which the complainant has rights.
  • The domain name owner has no rights or legitimate interests in the domain name.
  • The domain name has been registered and is used in bad faith.
But the complaint is needed to prove all these rudiments if he wants his action to succeed. However, the sphere name enrolment is cancelled or transferred to the plaintiff but there are no fiscal remedies handed to him If the vituperative enrolment is proved.

WIPO Arbitration and Mediation Center Decisions on Domain Names:

World Intellectual Property Organization is the top sphere name disagreement resolution service provider under the UDRP and is accredited by ICANN. WIPO handed good panellist, and ready executive procedures, and overall equity and credibility. A sphere name case filed with WIPO is typically concluded within 2 months, using online procedures, and a minimum figure is charged. Only extra-ordinary cases are heard in person.

Summing up:
Indeed due to the absence of cyber-laws, Judiciary and INDRP are paving a path to deal with sphere squatters cases and make sure justice to be delivered to its due proprietor. With the development of UDRP, INDRP over a period of time, the Courts are less burdened and within a reasonable time the matters are resolved by Disagreement Resolution policy, and only minimal freights are charged.

References:
  • https://enterslice.com/learning/cybersquatting/
  • https://selvams.com/wp-content/uploads/2019/07/bloomberg.net_.in-3.pdf
  • https://indiankanoon.org/doc/1741869/
  • https://indiankanoon.org/doc/806788/
  • https://www.mondaq.com/india/trademark/784296/domain-name-disputes-and-cybersquatting-in-india-part-ii
  • https://www.registry.in/
  • https://sectigostore.com/blog/what-is-cybersquatting-what-to-know-how-to-prevent-it/
  • https://selvams.com/wp-content/uploads/2019/07/youtube.co_.in_.pdf

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