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Understanding The World Of Domain In Cyber And IT Law

The internet has brought a revolution which can be equaled with the industrial revolution of the 19th century. The internet was launched as a communication tool for the masses but, within a few years, it became one of the most important tools of modern day communication be it for business transactions, governmental policies, social interaction etc.

It has comprehensively extended the reach of technology and acquisition of data. It has provided opportunities to millions and also brought liabilities to many especially in the field of intellectual property, data privacy etc. The Internet has become a very powerful tool, having the ability to create jobs, shorten product life cycles, circumvent international communications barriers, and transcend political and social boundaries. The challenge the law hasfaced in recent years is, how to foster the development of intellectual property on the Internet while preventing its unauthorized us.

Domain name has acquired the same rather more significance than the trade name. It is more frequently used by commercial organizations and has become an indispensable source of promoting their products. With the growing significance of domain names have also increased the disputes surrounding them, especially with respect to registration and trafficking. Domain names are treated as trade marks and the passing off action applies equally to them.

The High Court of Delhi ("DHC") in the Times Internet Ltd. vs. M/s Belize Domain Whois Services Ltd. & Ors has re-affirmed the passing off principle for domain names. The present bulletin discusses this case and also examines the essential elements required to establish mala fide in cases pertaining to domain squatting.

Every resource on the Internet, such as a web page or a file of information has its own address known as Uniform Resource Locator URL. A domain name is part of this address which is assigned to each computer or service on the Internet. Domain name system maps names to a series of number or IP address. These numbers are then linked with an easily read and remembered address - the domain name.

The domain name need not change if the computer or service changes, whereas the series of numbers will. The domain name is intended to be more meaningful to human beings than the series of numbers. The numbers referred to above are linked with the domain name "rs. internic.net". People who are using the domain name can therefore choose an easily remembered, and importantly, easily recognizable names in cyberspace.

The Internet Corporation of Assigned Names and Numbers (ICANN) is responsible for the administration of top level domain names. In assigning a domain, NSI uses a multi level system, including a top level domain (TLD) such as .com and .net which are considered worldwide generic. First step to acquire a domain name is to contact the administrator of the TLD and if the identical requested domain name is not already assigned, the name will be then approved by the administrator.

That allocation of IP addresses and domain names worldwide is done centrally. There is a specific registration process involved. The IANA is the central internet authority that allocates IP addresses and domain names through the Internic Domain Names

We have addresses for our homes and offices. The same way domain names arenothing but simple forms of addresses on the internet. These addresses enableusers to locate websites on the net in an easy manner. Domain names correspondto various IP (Internet Protocol) numbers which connect various computers andenable direct network routing system to direct data requests to the correct addressee. In other words a domain name is a "uniform source locator".

Domain names are of two types. Besides locating sites, domain names also have a function of identifying businesses and their goods and services on the net, which gives them an edge.

Laws In India
Unlike many developed countries, in India we have no Domain Name Protection Law and cyber squatting cases are decided under Trade Mark Act, 1999.

That although the Indian Courts have drawn the distinction between trade mark and domain name; wherein the Hon'ble Supreme Court in Satyam Infoway Ltd vs Sifynet Solutions Pvt Ltd; AIR 2004SC3540 has observed that the "distinction lies in the manner in which the two operate.

A trademark is protected by the laws of a country where such trademark may be registered. Consequently, a trade mark may have multiple registrations in many countries throughout the world. On the other hand, since the internet allows for access without any geographical limitation, a domain name is potentially accessible irrespective of the geographical location of the consumers. The outcome of this potential for universal connectivity is not only that a domain name would require worldwide exclusivity but also that national laws might be inadequate to effectively protect a domain name.

The Indian Courts though have recognized the lacuna, however, in the absence of a explicit legislation, courts apply provisions of the Trade Marks Act to such disputes. The Court in Case (Supra) further observed that:
As far as India is concerned, there is no legislation which explicitly refers to dispute resolution in connection with domain names. But although the operation of the Trade Marks Act, 1999 itself is not extra territorial and may not allow for adequate protection of domain names, this does not mean that domain names are not to be legally protected to the extent possible under the laws relating to passing off.

Dispute Resolution
Dispute involving bad faith registrations are typically resolved using the Uniform Domain Name Dispute Resolution Policy (UDRP) process developed by the ICANN. Under UDRP, WIPO is the leading ICANN accredited domain name dispute resolution service provider and was established as a vehicle for promoting the protection, dissemination, and the use of intellectual property throughout the world. India is one of the 171 states of the world which are members of WIPO.

A person may complain before the administration dispute resolution service providers listed by ICANN under Rule 4 (a) that:
  1. A domain name is "identical or confusingly similar to a trade mark or service mark" in which the complainant has rights; and
  2. The domain name owner/registrant has no right or legitimate interest in respect of the domain name; and
  3. A domain name has been registered and is being used in bad faith.

Rule 4 (b) has listed, by way of illustration, the following four circumstances as evidence of registration and the use of a domain name in bad faith:
  1. Circumstances indicating that the domain name owner/registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark; or to a competitor of that complainant for valuable consideration in excess of its documented out of pocket costs, directly related to the domain name; or
     
  2. The domain name owner/registrant has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that it has engaged in a pattern of such conduct; or
     
  3. The domain name owner/registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
     
  4. By using the domain name, the domain name owner/registrant has intentionally attempted to attract, for commercial gain internet users to its web site or other online location by creating a likely hood of confusion with the complainants mark as to the source, sponsorship, affiliation, or endorsement of the domain name owner/ registrant web site or location or of a product or service on its web site or location.
     
India has also established its own registry by the name INRegistry under the authority of National Internet Exchange of India (NIXI), wherein the dispute related to the domain name are resolved under the .IN Dispute Resolution Policy (INDRP). The Policy has been formulated in line with internationally accepted guidelines, and with the relevant provisions of the Indian Information Technology Act 2000.

Under InRegistry, disputes are resolved under .IN Domain Name Dispute Resolution Policy (INDRP) and INDRP Rules of Procedure. These rules describe how to file a complaint, fees, communications and the procedure involved.

Case Analysis
Suit Appeal No. 371 of 2000 - At, High Court of Delhi - By, The Hon'ble Mr. Justice J.D. Kapoor - For the Appearing Parties: Pratibha M.Singh, Radha Chawla, Rajiv Nair, Advocates. - Decided On, 24 April 2001

Facts
THE case of the plaintiff in brief is that it is the registered proprietor of the trade mark BISLERI and is registered under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'the Act') bearing No. 260716 dated 20/11/1969 and is also the owner of the copyright in the BISLERI word and the unique manner in which it is written. Its mark BISLERI is extremely well known in the Indian market and was one of the first marks introduced for bottled mineral water in India.

The bisleri water is distributed in over 500 towns and cities of India and constitutes 70% of the branded bottled mineral water in the country. That it has a huge distribution network all over the country which ensures that the mineral water under the mark BISLERI is made available to consumers all over the country.

That plaintiff has also spent huge sums of money on the advertisement and publicity of its product BISLERI and its reputation has grown over the years as result of enormous consumer confidence and trust in the mineral water and the mark BISLERI has come to be associated exclusively with the plaintiff and, therefore, belongs to the plaintiff and no one else has the right to use the said mark in relation to any product whatsoever.

THAT the word BISLERI has no dictionary meaning and is an Italian surname which is entitled to the highest degree of protection like various other surnames which fall in this category namely Colgate, Bata etc. One mr. Felice Bisleri, an Italian entrepreneur has set up business of mineral water in India and the business was bought by on the plaintiff 's group companies and all the rights in the BISLERI mark now vest exclusively in the plaintiff company.

IN order to have easy access for the consumers, each and every manufacturer, trader or service provides is allotted one or re names by which the consumer can access the information relating to the said manufacturer or service provider. Such a name is called the 'domain name' and It is Arguments Of Plaintiff.

THE plaintiff had applied for registration of its name as bisleri-com. However, In January, 2000, the plaintiff came to know about the Illegal and unlawful registration of this domain name by the defendant on 11/12/1999 and on visiting or searching from the website of the Authority it was found that it has been registered in the name of defendant No. 2 and defendant no. 1 was the Technical Contact for defendant No. 2.

THAT In view of the fact that the mark BISLERI is the property of the plaintiff and is registered under the TMM Act confusion is bound to take place when a person wishes to know about the product of'the plaintiff. It will go to the vebsite and type bisleri. com and he will be taken to the website of the defendant which has nothing to do with the plaintiff's goods for business. Thus this constitutes a mischief of passing off by the defendants.

THAT the malafide and fraudulent intentions of the defendants came to the light to the plaintiff when it was revealed that the defendants have already their own domain Name namely [email protected] COM and are merely using the domain name of the plaintiff in order to trade in it and/or to pressurize the plaintiff to part with huge sums of money for the same and as a blockingor trafficking tactic.

WHEN the plaintiff called upon the defendants to immediately transfer the rights of the said domain name in the name of the plaintiff the defendants demanded large sums of money for doing the same.

Arguments Of Defendant
THE defendants were proceeded ex parte as inspite of having been served with the summons of the suit and the application under Order 39 Rule 1 and 2 seeking ad interim injunction order it did not respond or put in appearance to contest the claim of the plaintiff. To prove its case, the plaintiff has filed the affidavit by way of evidence and has proved the following relevant documents:
  1. Ex,p-3 bearing Registration No. 260716 dated 20/11/1997 is the registration certificate of the mark BISLERI under the TMM act.
  2. Ex. ,p-4 is the registration certificate under the copy Right Act.
  3. Ex. P-5 is an extract of registration of the domain name of the defendants BISLERI. com.
  4. Ex. P-6 is the copy of the e-mail dated 22/1/2000 sent by the defendant in response to the plaintiff's telephone call.
  5. Ex. P-7 is the letter by the plaintiff to the defendants informing the plaintiff to make the domain name available to the plaintiff which is the domain name of the plaintiff for the 20 year
  6. Ex. P-8 is the information received by the plaintiff from Network Solutions intimating that the have de-activated 'the domain name of the defendants BISLERI com pending the result of this suit.

THE reply sent by the defendants in response to the telephone of the plaintiff is highly relevant and needs to be reproduced. It reads as under:
"please refer to telecon you had with us for your demand for the domain name. After discussion with my partner and all my senior staff members, we mention following we are a team of professional technocrats working hard. We are presently working on following portals (under construction).

We had done lot of ground work for designing these sites and has put in many efforts to design the contents and have used lot of technology, We were under impression that Bisleri's meaning is mineral and we decided to design the site to provide info on all the minerals on the site and e-commerce and get the deals nationwide. We don't know since when the name was available for registration but when we decided to register it was available for more than 2 months before 13th december.

The site is ready for uploading. After your call, when we checked it in English dictionary, we didn't find anything and we came to know that its brand name. At the time of registing we had no different intention and today also we don't have any bad intension. In view of the above, we will be make the name available to you if we get the returns for work done on this project after considering the future business. Kindly convey your willingness so that we can plan our activities. "

Analysis Of Judgment
In Aqua Minerals Limited Vs Mr Pramod Borse & Anr; AIR2001Delhi 467 the Hon'ble High Court of Dehi Court has held that Unless and until a person has a credible Explanation as to why did he choose a particular name for registration as a domain name or for that purpose as a trade name which was already in long and prior existence and had established its goodwill and reputation there is no other inference to be drawn than that the said person wanted to trade in the name of the trade name he had picked up for registration or as a domain name because of its being an established name with widespread reputation and goodwill achieved at huge cost and expenses involved in the advertisement.

The Hon'ble High Court of Delhi Court has held that Unless and until the point when a man has a solid Explanation in the matter of for what reason did he pick a specific name for enlistment as a domain name or for that reason as a trade name which was at that point in long and earlier presence and had built up its generosity and notoriety there is no other derivation to be drawn than that the said individual needed to trade for the sake of the trade name he had gotten for enrollment or as a domain name on account of its being a set up name with across the board notoriety and altruism accomplished at enormous cost and costs engaged with the commercial.

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