India: Article-A Comparitive Study Of Cybersquatting In India And USA

Last Updated: 25 November 2019
Article by Shivani Mathur

In the current age, the Internet has become an important part of life of almost every individual in the developed nations and is rapidly increasing in the developing nations. For the business entities the internet has become a boon for communicating with the world. A business entity's trademark contains immense importance. It helps an entity build up its identity over the WWW. The chances of face to face interaction in internet world are very low and as a result the consumers cannot inspect the goods before purchase hence the consumers have to rely only on the trusted sources. In such a situation, the trademarks of the business entities play a vital role in assuring the consumers about the quality of the goods.

The Domain names are the establishment of the unmistakable structure on the Internet and are the premise on which E-trade has been developed. The web from a layman’s perspective is very convoluted which is termed as “the internet” the most widely recognized route for buyers to discover what they are searching for is to sort in a space name containing the brand’s name or organization they are searching for.If there are no domain names, a computer would have no idea where to look for a web page.

Originally, Domain Names were intended to function as an address, but today there are increasing numbers of cases of illegal registration of domain names called cyber-squatting. Cyber-squatting occurs when a domain name is registered by a third party in bad faith .

Due to increasing popularity of internet business entities find it highly beneficial to register a domain name same as the name of the company or product so that consumers can easily connect to them.The most famous example is of the USA based Yahoo Inc. Registration of domain names is an inexpensive process and takes less than 24 hours.The registration of domain name is on the basis of first come first serve, making it easier for disputes to arise over entitlement to domain names2.The UDRP is an online arbitration influenced administrative process available for the most serious types of trademark related domain name disputes-those involving so called cyber-squatting3.

As the number of domain name registration is increasing the rate of trademark infringement is increasing day by day, but the biggest reason there are so many domain name infringement cases is a prevailing lack of knowledge among people.

Today, cybersquatting has picked up a great deal of notoriety, there is most likely even charge card cheats are less in news but rather more space names and digital crouching. The Lanham Act may offer a solution for post-space trademark encroachment, yet that cure accept that the wronged mark proprietor can recognize and get locale over the culpable client. There is a very logical alternative provided by amending the ACPA to deal with domain name disputes.

It can very well be argued in favour of the cyber-squatters that the domain name registration system itself is flawed.The National Association of Software and Service Companies (NASSCOM) has made a recommendation to the Ministry of Information and Technology to bring about some more regulations in the statutory Acts pertaining to Copyrights and Trademarks applicable to Internet to prevent cyber-squatting.

We cannot turn a blind eye to the fact that decisions of the WIPO are not as authoritative as the law stands in the country and final decision lies in the hands of the court and legal mechanism in place will be followed for disputes which arise out of the domain names over the internet. Thus, it can be concluded from the above discussion that Cyber-squatting of domain names pertaining tTrademarks is going to pose real challenges to the legal fraternity in India in the near future.

As the virtual world is expanding, and as advanced techniques of accessing information unfold, the existing trademark law might not be able to cope with them. In such case the trademark owners might continue to be uncertain about their rights. Hence the Indian legislation as to be proactive in implementing suitable legislation.

One of the most ticklish issues facing the legal community today is the jurisdiction of the courts to decide Internet disputes. Internet disputes fall broadly under three categories:

A. Internet crimes (hacking, pornography, defamation etc.)

B. Disputes relating to e-commerce (e-contracts, digital signatures etc.)

C. Disputes involving Intellectual Property law (domain name disputes, caching, linking disputes etc.)

Focus should be shifted to the scope of the territorial jurisdiction of the Indian Courts in entertaining disputes in relation to Intellectual Property law, (typically – a domain name dispute) especially in a situation where the defendant happens to be outside India.

Domain names disputes are increasing at a high rate in India but unfortunately India does not have any legislation to deal with the problem of cyber-squatting whereas this activity is punishable under US Law… Domain names have become a big trading business today and around 10,000 domain names get registered daily.

The only law in India, governing jurisdiction (in case of a domain name dispute) is the Code of Civil Procedure. In this regard, Section 20 of the CPC provides the plaintiff with two options:

a) to file a suit in a court within whose jurisdiction the defendant (or one of them) resides, or;

 b) to file a suit in a court within whose jurisdiction the cause of action, either wholly or in part, arises.

In effect, a court in India would have jurisdiction to entertain a domain name dispute, even if the defendant resides outside the country, in case the plaintiff establishes that the cause 0f action arise within the territ0rial jurisdiction of the court. The requirement of the current time is to harmoniously apply the principles of the trademark law and the provisions concerning the domain names.

It is clearly time for a stringent law in India to deal with the issue of cyber-squatting. After all, managing a problem once is better than looking into the same problem repeatedly.

Footnotes

1 Marc D. Wielansky, Internationalized Domain Names 2001,p306,

2 Domain Names by Bromhead Johnson

Available at: http://www.intellectual-property.co.uk/pages/domain_names.

3 Lilian Edwards and Charlotte Waelde(2009)Law and the internet(3rd ed)Hart publishing.p322

4 Lanham act 1976, USA

5 Trademarks act 1999, INDIA

6 Anti-cyber-squatting consumer protection act 1999, USA

https://www.jstor.org/stable/40012207

https://www.intellectual-property.uk/pages/domain_names

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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