An Overview of Cyber Squatting in India

Introduction:

Today’s age isn’t called the “Age of the Internet” for nothing. The Internet was launched to connect people all around the world, letting them communicate with anyone at any time and anywhere on the globe. This brought literal meaning to a Sanskrit saying we say in our country – “Vasudheiva Kutumbakam”, which means “The world is our family”. Just within the span of a few years, however, the Internet evolved at an incredible rate and brought about a revolution in society by bringing new opportunities and changing the lives of millions. Things became much easier and faster than humans could have ever imagined. New ways of working developed in possibly every field of work we can think of. Liabilities were introduced in fields such as intellectual property, data protection, and privacy, etc which are topics of the main focus in this article.

Over the years, the law has tried to find ways to establish intellectual property online while preventing its unauthorized use. Inevitably, anything that comes with extraordinary convenience, safety, and power to bring change will also come with few loopholes which certain people can’t help but exploit for their benefit. One of these is the concept of Cybersquatting.

What are Domain Names?

Before understanding what exactly Cybersquatting is, it is necessary to understand what a domain name means and how it works.

Be it any resource on the Internet- web pages, informative files, etc, all of them have a unique address to help people identify it and access it through the web. This address is known as the Uniform Resource Locator (URL). It helps the user to recognize a particular resource online and takes the user to it safely, just like how a delivery man finds our house with the help of the address we provide him with. Every computer or service on the net does indeed, have this address, and a domain name is nothing but a part of this address. In easy terms, it is the identity of a particular website. Domain names can be a combination of words and numbers and it is completely up to the creator how or what does he/she wants to keep as the domain name.

However, most of the time the creator keeps the name using alphabets so that it is easier for us humans to recall and use. If we were robots, then domain names with all numbers and no alphabets would be no problem to us anyway but as we are not, we require catchy words and names of popular organizations so that we can easily remember them and access the respective domain. You must have seen several extensions in front of these domain names like “.com”, “.org” etc. These extensions which we see joined to a lot of domain names are called “Top-level domains”. The reason why they are called so is just that these are the most common and widely used extensions. Every top-level domain extension conveys some kind of meaning or background of the domain it is attached to. For example- “.com” denotes and is short for “commerce” and the sites using this extension are generally businesses. However, they don’t need to always be so as anyone can use this extension. Similarly, “.in” denotes that the particular organization/company resides or has its origin in the country of India. There are ‘n’ number of such extensions all with their meanings. Hence a complete domain name looks like – “www.google.com” where “www” stands for World Wide Web meaning the site is connected to the web/Internet. “Google” is the domain name and “.com” is its domain extension/top-level domain.

What is Cybersquatting?

Cyber Squatting is the registration of trademarks & trade names as domain names by third parties, who do not possess rights in such names.[1] Simply put, cybersquatters (or bad faith imitators) register trademarks, trade names, business names, and so on, belonging to third parties with the common motive of trading on the reputation and goodwill of such third parties by either confusing customers or potential customers, and at times, to even sell the domain name to the rightful owner at a profit.[2] This dispute has specifically grown a lot in the past few years when intellectual property as a field started evolving rapidly online and it has very destructive effects on the rights of the holders of intellectual property. After pulling such a move mostly what a cybersquatter does is that he seeks to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.[3] They also almost always ask for much higher prices than what they had purchased the domain for. They even go to the extent of making disparaging comments about the organization that the domain is meant to represent to compel them to buy that domain from them.

Types of CyberSquatting

Now, there are some peculiar and common types of Cybersquatting that we see. These can be broadly understood based on the nature of the operation.

1. The most commonly seen method of Cybersquatting is “Typo-Squatting”. This is based on the obvious notion that sometimes people will make typographical mistakes while typing the domain names in their browsers, and when they do, they will be redirected to a fake and generally cheap version of the actual domain they were trying to access. Examples-
   • Sometimes the individual may forget to type the dot (.) – “wwwgoogle.com”
   • A common spelling error of the domain name- “www.goggle.com”
   • By bringing a variation in phrasing- “www.googled.com”
   • The one with a varying top-level domain than the original- “www.google.org”
2. Identity Theft: Domain name registrations last for a particular period of time and need to be renewed/re-registered by the owner from time to time. If in case this re-registration is not done, anyone is free to buy the domain. This fact is exploited many times as what squatters tend to do is that they use specialized software-based methods to register the domain the moment it gets expired.
3. Name Jacking: This method involves using the name of a certain someone to create a site that generally has the motive of selling high-profit services. These sites tend to be on top when anyone searches for the name which has been jacked. Example- “www.sundarpichai.com”

Scenario of Cybersquatting in India

Unlike many other developed countries, India does not have a law for the protection of domain names or even one for Cybersquatting. Even the only Cyber legislation that we have in our country i.e. Information Technology Act, 2000 [4] does not address the dispute of Cybersquatting. Then how does Judiciary in India deal with cases involving the above conflicts? Let’s see.

Cases involving conflicts like Cybersquatting and domain name infringement are dealt with under the Trade Marks Act, 1999 [5]. The Hon’ble Supreme Court, in the case of Satyam Infoway Ltd. vs. Sifynet Solutions Pvt. Ltd., [6] said 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 extraterritorial 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”.

According to the above statement of the court what it wants to say is that under the Trademarks Act, 1999 there are two remedies available-

• Remedy of Infringement: When an individual has his/her domain name infringed he/she can take action on the same by claiming this remedy. However, this remedy can be availed only when the trademark is registered.
• Remedy of Passing off: The action against passing off is based on the proposition pronounced in N.R. Dongre vs. Whirlpool [7] in which the court stated that “a man may not sell his own goods under the pretense that they are the goods of another man.” No registration of a trademark is required to avail of this remedy.

The World Intellectual Property Organization (WIPO) recently announced that the number of cybersquatting cases has reached an all-time high.[8] In 2010, trademark holders filed 2,696 cybersquatting cases relating to the same 4,370 domain names with the WIPO Arbitration and Mediation Center under procedures based on the Uniform Domain Name Dispute Resolution Policy (UDRP).[9] This brings us to alternate dispute resolution methods which people have started to resort to due to the increasing number of cases instead of going through the formal legal procedure.

Alternate Dispute Resolution

ICANN, which stands for Internet Corporation of Assigned Names and Numbers, is a not-for-profit public benefit organization that is dedicated to keeping the Internet secure, stable, and interoperable. [10] It also administrates top-level domain names. ICANN has developed a Uniform Domain Name Dispute Resolution Policy (UDRP) according to which WIPO provides dispute resolution to promote the protection and promulgation of intellectual property all over the world. Since India is also a member of WIPO along with 171 other countries, the people of India can opt for this method of dispute resolution. India has also succeeded in creating its registry i.e. named “INregistry” under the acquiescence of the National Internet Exchange of India (NIXI) wherefore the respective domain name conflict shall be solved under the IN Dispute Resolution Policy (INDRP).

Case Laws

Yahoo! Inc. vs. Akash Arora and Netlink Internet Services[11]

This was the very first case of Cybersquatting that the Indian Judiciary had faced. In this case, the plaintiff was the official and registered owner of the domain name “Yahoo.com”. The defendant was trying to use the name “Yahooindia.com” which is similar to the original domain and could easily confuse people trying to access the original domain.

The Bombay High Court in Rediff Communication vs. Cybertooth & Anr.[12]

This case can be a great example of the ‘typo-cybersquatting’ we saw earlier. The defendant registered a domain by the name of “radiff.com” which is very similar to “rediff.com”. The court gave a decision in favor of the plaintiff.

Tata Sons Ltd. vs. Mr. Manu Kishori & Ors.[13]

Here, the defendant created and registered several domain names which had the name TATA. The Court said that domain names are not only addresses but also trademarks of companies and they are equally important as well.

Bennet Coleman & Co Ltd. vs Steven S Lalwani & Bennet Coleman & Co Ltd. vs. Long Distance Telephone Company[14]

This case was dealt with in an arbitration panel of WIPO. The defendant, in this case, had registered domain names by the names of “www.theeconomictimes.com” and “www.timesofindia.com” which are very similar to the original & plaintiff-owned ones which go by the names “www.economictimes.com” and “www.timesoftimes.com” respectively. The final decision came in the favor of the plaintiff.

Acqua Minerals Limited vs. Mr. Pramod Borse & Anr.[15]

In this case, the defendant was entitled to stop using the domain name Bisleri.com since the original trademark belonged to Acqua Minerals Limited (plaintiff).

Conclusion

In this era of the Internet, Cybersquatting as an issue cannot and must not be taken lightly. It has resulted in the loss of crores of rupees of fortune to numerous companies and organizations. There is a dire requirement of new legislation which deals specifically with issues related to domain names and cybersquatting. Stricter laws must be implemented. Plaintiffs should be given the option of acquiring statutory damages. An independent body of adjudication can be a great idea as lesser time will be consumed in dealing with disputes. Existing bodies or policies like INDRP must be revamped and made compulsory instead of being just guiding policies.

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References:

[1] Cybersquatting Laws in India, Singh & Associates, 29 November 2012, First Para Line 5, https://www.mondaq.com/india/trademark/208840/cyber-squatting-laws-in-india

[2] Id at first para 8^th line

[3] CyberSquatting and its Effectual Position in India- Zohaib Hasan Khan, Piyush Charan, Mohd. Amir Ansari & Kashiful Hasan Khan, Para 3 under ‘Cybersquatting’, https://www.ijser.org/paper/Cybersquatting-and-its-Effectual-Position-in-India.html

[4] Information Technology Act, 2000, https://indiankanoon.org/doc/1965344/

[5] The Trade Marks Act, 1999, https://indiankanoon.org/doc/1017213/

[6] AIR SC 3540, 2004

[7] AIR Delhi 300, 1995

[8] Cybersquatting: concept, types and legal regimes in India & USA, Sankalp Jain, Page 15 Para 3, https://ssrn.com/abstract=2786474

[9] Id at para 3 line 3 onwards

[10] ICANN, Overview, https://www.linkedin.com/company/icann

[11] Yahoo! Inc. vs. Akash Arora & Anr., IIAD Delhi 229, 1999, see full judgement- https://indiankanoon.org/doc/1741869/

[12] Reddiff Communication Limited vs Cybertooth & Anr., BomCR (4) 278, 1999, see full judgement- https://indiankanoon.org/doc/806788/

[13] Tata Sons Limited vs. Mr. Manu Kishori & Ors., IIIAD Delhi 545, 2001, see full judgement- https://indiankanoon.org/doc/542243/

[14]Bennet Coleman & Co Ltd. vs. Steven S lalwani & Bennet Coleman & Co Ltd. vs. Long Distance Telephone Company, https://www.wipo.int/amc/en/domains/decisions/html//2000/d2000-0014.html  

[15] Acqua Minerals Limited vs. Mr Pramod Borse & Anr., AIR Delhi 463, 2001, see full judgement- https://indiankanoon.org/doc/1597432/