India: Curbing the Menace of Typosquatting

Last Updated: 5 September 2006
Article by Manisha Singh Nair

Every website has a unique and distinctive Internet Protocol Address. This IP Address comprises of a set of numerals. The Domain Names System allocates an easy to remember name to the numerals and these are the domain names. Thus these alphanumeric identities are used to reach an IP address. Usually a domain name consists of two or more parts separated by dots, the right most part called the top-level domain and the left, a subdomain.

As the Internet has become the platform of transaction of business, domain names have acquired the value and status of a trademark of a company. The significance of domain names lies in the fact that it plays the same role and hence has a similar value as that of a trademark. The company may use the domain names to conduct its business or for advertisement of its products and services. A domain name, thus serves the dual purpose of an address on the Net and a distinctive mark to identify products and services, and hence constitutes the intellectual property of its owner. Thus having a great potential for being commercially exploited a corporate entity has to protect its domain name from illegal exploitations. However due to its easy accessibility, the domain names are susceptible to infringement, cybersquatting and typosquatting.

Cybersquatting in the legal parlance is the registering, trafficking and using of a domain name with bad faith intent to profit from that mark which includes a personal name, which is protected as a mark. Cybersquatting was made illegal in the U.S. by the passage of a Federal law in 1999 known as the Anti-Cybersquatting Consumer Protection Act. The law became necessary because numerous large companies were forced to pay large sums to buy their domain names from third parties.

Cybersquatters sometimes register variants of popular trademarked names, a practice known as typosquatting. Typosquatting, also known as URL hijacking is a form of cybersquatting wherein the typographical errors made by the Internet users as they type in a web address leads them to an alternative site owned by a cybersquatter. At times the website layout, logos, contents etc of the typosquatter’s site may also be similar to that of the original. Herein the user may identify the source of the products and services offered by the site to be the original company. This further affects the goodwill and reputation of the original company and can also result in financial loss for the company.

The issue at hand is mostly taken care of by issuing a cease and desist notice to the offender or by purchasing the webaddress or by initiating law suits. From a technical perspective, in order to locate typosquatting Microsoft had launched a software called "Strider Typo-Patrol" which scans and shows third-party domains that are allegedly typosquatting. Interestingly, recently Microsoft has initiated lawsuits against two hundred and odd alleged infringers of its trademarked terms.

The legal basis for the claim made by Microsoft is the Anticybersquatting Consumer Protection Act which is a part of the trademark law, The Lanham Act. The relevant provisions of the Act allows damages of up to $100,000 to be awarded against anyone who registers domains "identical to, confusingly similar or dilutive of" a trade mark in bad faith and with intent to profit.The company will further be issuing subpoenas to unmask the now anonymous registrants of infringing domain names.

In India per-se there exists no specific law or statute for the protection of domain names and the same is protected by the principles of Trademark Act, 1999 and the protection is extended to domain names when such domain names are registered trademarks of another person. The legal developments in this regard has been made by judicial observations in a catena of decisions including Satyam Infoway Ltd. v. Sifynet solutions (P) Ltd., 2004 (25) PTC 566 (SC) wherein the Apex Court, while emphasizing the significance of protecting domain names observed:

"The original role of a domain name was no doubt to provide address for computers on the Internet. But the Internet has developed from a mere means of communication to a mode of carrying on commercial activity. With the increase of commercial activity on the Internet, a domain name is also used as a business identifier. Therefore, the domain name not only serves as an address for Internet communication but also identifies the specific Internet site. A domain name is easy to remember and use, and is chosen as an instrument of commercial enterprise not only because it facilitates the ability of the consumers to navigate the internet to find websites they are looking for, but also at the same time, serves to identify and distinguish the business itself, or its goods or services, and to specify its corresponding internet location. Consequently a domain name as an address must, of necessity, be peculiar and unique and where a domain name is used in connection with a business, the value of maintaining an exclusive identity becomes critical."

There have been numerous cases with regard to cybersquatting and even a recent decision, Mawana Sugars Ltd., v. Panalink Infotech Ltd., 2006 (32) PTC 537 (WIPO) on the issue of cyberflying that came up.

Given the kind of issues that are arising in the cyberspace, specific laws recognizing the value of the domain names as a trademark equivalent as well as, capable of checking specific issues like typosquatting becomes the need of the hour.

© Lex Orbis 2006

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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