India: ICANN’s UDRP As A Domain Name Dispute Redressal Mechanism

The rapid growth of the internet in the past ten years has witnessed a huge range of evolution in technological developments, from windows 98 to windows 8, from ugly html personal pages to colorful blogs, from e-mails to social networking sites to mention a few. But one thing has remained the same, the way from which the websites and web pages are accessed -THE DOMAIN NAMES.

DOMAIN NAMES IN GENERAL:

Domain names can be defined simply as an address of the internet, for e.g. www.google.com , www.yahoo. com etc. It helps to locate a particular web page, send emails etc. Domain names are usually very closely related with the particular service or product for which it is used.

Domain names are divided into hierarchies. The top level in hierarchy of a domain name is the one which appears after the last dot (.) For e.g. in www.google. com, the top level domain name (TLDs) is "COM". "COM" is the most common and widely used domain name which indicates that the domain name is owned by a commercial enterprise. Other TLDs may include "org" for non-profit organizations, "net" for network and Internet related organizations, "gov" for government organizations etc. these TLDs are called generic top level domain names(gTLDs). Prior to 2000, there were only three gTLDs which were available for registrants i.e. ".com", ".net" and ".org". In November 2000, after a long and complex discussion, ICANN approved the much awaited creation of seven new gTLDs. However, any registry which wants to use these new gTLDs has to take approval of the United States Department of Commerce, which is at present the authoritative body regarding the allotment of new gTLDs.

Apart from this, there are several unique top level domain names as well which are used by particular countries for e.g. "fr" for France and "in" for India etc and are called Country Top level Domain Names (CTLDs).

The area where the disputes usually arise regarding a domain name is the second level domain name. A second level domain name is the one which is placed to the exact left of the top level domain name for e.g. in www.google.com "goggle" is the second domain name. Such disputes arise as no two identical second level domain names can exist under a same top level domain name. Anyone, who wants to register a particular domain name in his or her name, shall apply for registration in the office of a ICANN-approved domain name registry. At present, the disputes related to domain names are addressed under the provisions of a UDRP (Unique Dispute Resolution Policy) of ICANN (Internet Corporation for Assigned Names and Numbers). ICANN is a private body and the authority which is responsible for implementation and enactment of internet related parameters and the allotment of unique identities to users. The domain name registering bodies operating in particular countries are registered with ICANN. ".IN" registry which acts as a registering body in India is an example of this.

ICANN'S UDRP

UDRP of ICANN is acting as a role model policy in resolving disputes related to e-commerce. The UDRP was approved and implemented by the ICANN on 24th October, 1999. This action of the ICANN was based mainly on the report of "Second Staff Report on Implementation Documents for the Uniform Dispute Resolution Policy". The policy deals with the disputes between Registrars (or any other registration authority in case of country-top-level- domain names) and the domain name holders or registrants. Therefore, the whole policy uses the terms "you/your" and "we/our" for the registrants and themselves respectively. The main purpose behind this policy is to provide the domain name holders an alternate remedy apart from the courts for settlement of disputes related to cyber squatting and illegal transgressing etc. More than 7000 cases have been dealt with since the adaption of this policy. As per ICANN'S policy it is a mandatory requirement for all the Registrars to keep a separate provision in all their registration agreements which makes all the registrants contractually bound to submit to the UDRP, all their disputes and consequences. Also, they are bound to submit to the UDRP in case any aggrieved third party calls upon for that.

TYPES OF REMEDIES AVAILABLE

There are two types of remedies which are available to a complainant under the UDRP1.

However, there is only one remedy that has been practically availed in most of the cases i.e. Transfer of the domain name to the Complainant. If we look at the records till the year 2001, cancellation has been ordered in less than even 0.008 % cases. This is because once a domain name is cancelled, it is again available for registration by any other person, and the respondent himself can after associating with someone else get the same domain name registered in his name. This is the primary benefit of the remedy of getting the domain name transferred, another advantage which the complainant gets is that once the domain name is taken away from the respondent, he can no longer operate on the Internet with the same name. Consequently, it also ends up in hampering the business of a rival. Therefore, it is always suggestible to get the domain name transferred in the name of the complainant rather than getting it cancelled.

UNIQUE FEATURES

The features that make the UDRP unique are its specific descriptions of prohibited conducts2. According to the policy, a bad faith registration and use of a domain name is a prohibited conduct , where the domain name owner does not has any rights or a legitimate interest3, or where the domain name is identically or deceptively similar to the trademark or service mark of another person4. The UDRP specifies non-exclusive circumstances which are determinative of a right or legitimate interest in the domain name5, and of bad faith registration and use of the domain name6. The persons entitled to seek a remedy are the ones who have a legitimate interest in registered or unregistered trademark, service mark or domain name.7

CONCLUSION

It is often said that "a code is a law"8. The UDRP has tried to bring and address all the internet related disputes through a same platform. Apart from this, it also acts as a model law to the individual states so that they can also enact legislations based on this in their own countries. In the United States the disputes related to registration of domain names are dealt by the provisions of the Anti-Cybersquatting Consumer Protection Act ("ACPA") and the Indian policy of IN Domain Name Dispute Resolution Policy (INDRP) are the best examples of UDRP based policies adapted by individual states.

Footnote

1.UDRP, Para. 4 (i)

2. UDRP, para.4(a) (iii).

3. UDRP, para.4(a) (ii).

4. UDRP, para.4(a) (i).

5. UDRP, para.4(c).

6. UDRP, para.4(b).

7. UDRP, para. 4 (a) (i)

8. LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999).

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