This article on Cybersquatting is written by Ishita Garg. A 4th year student from Balaji Law College, and an intern at Legal Upanishad.
Introduction
Cybersquatting is the practice of registering, trafficking or selling the domain name with the intent of profiting from the goodwill of someone else’s trademark. Cyber squatters simply demand higher rates than the actual prices for the domain name from the companies and businesses. Panasonic, Avon, Hertz were some of the victims of ‘cybersquatting’.
The technology is enhancing day-by-day, which has given a new platform to trade and business. Cyber development has increased a plethora of business activities. Cybersquatting originated in the 1990s when the companies were unaware of the importance of registering the trademark domain. A Domain name is a website address that gives an online identity and can be registered as a trademark that is unique and distinguishable from others. There was a case where the Court held that domain names can be accepted as intellectual property rights, which are trademarks.
Types of Cybersquatting
There are four types of cybersquatting, namely, Typosquatting, Identity theft, Name-jacking, and reverse Cybersquatting. Typosquatting is fabricating the original domain by misspelling the name. In identity theft, the squatters purchase a web portal of the original user that has expired and link their websites with them to mislead the visitors. Name jacking is simply registering the domain with a public figure or celebrity. Reverse cybersquatting is to obtain a legal domain name owned by the original user through coercion and pressure.
There is a solution to this as some countries have specific laws against cybersquatting which is discussed below.
Laws In India for Cybersquatting
Indian currently has no specific Domain Name Protection Law. The cases of cybersquatting are dealt with under the Trademark Act, 1999. Sec.29 of the act talks about the infringement of domain names. A person who has not registered his trademark can also be protected under this act if he is the prior user.
The domain names are registered and protected as trademarks by one organization, i.e., ICANN (Internet Corporation for Assigned Names and Numbers) along with national and international protection under the Trademark Act and International trademark treaties of the world.
Uniform Domain Name Dispute Resolution Policy
In 1999, ICANN adopted a policy for domain resolution called the Uniform Domain Name Dispute Resolution Policy (UNDRP). It was an internet policy that resolved the matter of cybersquatting when faced by the owners of a trademark that used to control the deletion or transfer of domain names. The owner can file a complaint if he finds his domain name is identical or confusing but is not for someone who uses this policy in bad faith. UNDRP does not include any financial benefits.
WIPO is one of the domain resolution service providers that was established to protect trademarks. India being a member of WIPO gives relief to the victims of cybersquatting. The resolution is provided under Rule 4 (a) listed by ICANN. A case can be filed under WIPO within two months using online methods.
Instances of Cybersquatting in India
India had no legislation for cybersquatting and formed a policy called “. In Dispute Resolution Policy” which worked on similar lines like UNDRP and provisions of Information Technology Act,2000.
There was a case where a similar and identical name was used by the petitioner Mr. Gulshan Khatri in opposition to Google. The name used was Googlee and it was registered under in Registry. The case was presented by Google before the High Court of Delhi where the Court held that the domain name was registered in bad faith and not coincidentally.
There have been many cases of Cybersquatting in India. The famous case where the domain name was found similar was Rediff Communications vs. Cyberbooth where it was seen that the defendant used the name radiff.com. The Bombay High Court held that both names Rediff.com and radiff.com are similar and identical. Hence, the defendant used the name in bad faith and it would mislead the consumer.
In 2018, The Delhi High Court restrained a cybersquatter from using or selling, or commercially exploiting the domain name. The squatter registered the domain name as aroonpurie.com and used his picture on the home page and put it up for sale at a premium rate.
Recent Developments in Cybersquatting
In recent years, with the increasing number of cybersquatting cases, the social media platforms took the initiative at their ends to curb the rising of cybersquatting. Facebook, Instagram, and Twitter have made sure that the registered trademarks do not get infringed. They used the concept of a verified account to maintain the identity of the original user. The trademark owners can also file a complaint through a username infringement form to Facebook if he finds that their right is being infringed.
Suggestions
Many businesses and companies have been prey to cybersquatting. But some legal procedures can be taken by an individual to protect themselves from paying a large amount of their goodwill to these squatters.
- Firstly, the trademark owners have to register their domain name through. In Registry to make it a registered trademark but it should be identical and distinguishable from others.
- Even after registering the domain, sometimes, cybersquatting or domain disputes arise. It is when the squatter tries to register the original domain with a little change in bad faith. The aggrieved party can ask for grievance from WIPO at the international level which has formed UNDRP for the same purpose.
- In India, the aggrieved can take protection from. In Registry under INDRP or The Trademark Act, 1999. They can also take help by arbitration.
- We can wait for the formulation of a more stringent law that directly deals with the matters of cybersquatting but till then we can be protected from the above methods.
Conclusion
Technology has developed in the past few years that has given rise to cybercrimes such as cybersquatting. Importance of domain names has gained importance in both the internet as well as business and commercial activities. It has made aware the original trademark owner to register their domain so that they can be distinguished from others. Those who chose not to register their trademark became the victims of cybersquatting.
The concept of cybersquatting is on the rise worldwide. The WIPO has taken the initiative by forming UNDRP at the international level to solve such cases. India has neither any law nor any governing body to deal with cybersquatting. But, seeing the need INDRP was formulated to settle these types of cases. Presently, the cases are held under the Trademarks Act, 1999 through the principle of passing off but there are many problems faced by the jurisdiction which can be solved only by the drafting of a new law that can immediately look after such cases.
References
- Satyam Infoway Ltd. vs. Sifynet Solutions Pvt. Ltd. (06.05.2004 – SC): MANU/SC/0462/2004
- Gulshan Khatri vs. Google Inc. (20.03.2017 – DELHC): MANU/DE/0750/2017
- MANU/MH/0308/1999
- https://www.indiatoday.in/india/story/delhi-hc-says-aroon-purie-has-right-over-domain-name-aroonpurie-com-removes-squatter-warns-seller-1263363-2018-06-18
- https://blog.ipleaders.in/cybersquatting-indian-trademark-act/
- https://www.mondaq.com/india/trademark/784296/domain-name-disputes-and-cybersquatting-in-india-part-ii
- https://www.icann.org/resources/pages/help/dndr/udrp-en
- https://www.origiin.com/2020/12/07/cybersquatting-creating-domain-names-analogous-to-popular-trademarks/