Cyber squatting: A Critical Analysis of Cases in India
From Advocatespedia, The Law Encyclopedia
Cybersquatting (also known as Domain Squatting), according to the U.S federal law known as Anticybersquatting, consumer protection act, registering , trafficking in or using an Internet Domain name with bad faith intent to profit from the goodwill of a trademark belonging someone else Cybersquatting refers to illegal domain name registration or use. Cybersquatting can have a different variations, but its primary purpose is to steal or misspell a domain name in order to profit from an increase in website visits, which otherwise not be possible. It can easily steal Domains name.
Cybersquatting is one of several types of cyber crimes
Cybersquatting is generally defined as the registering, sale or use of a Domain name containing a trademark that the registration doesn’t have the right to with the intent to profit from goodwill of the mark.
The present day internet, often called the “Information Superhighway”, is not what its original creators imagined. The internet began in the 1960’s as a department of defence project named ARPANET. ARPANET was a computer network that allowed various continue to stay in communication during and after a catastrophe.
With the creation of World Wide Web and a graphical, points-and-click interface that combines text with pictures, sounds and easy linking, commercial uses could finally take full advantage of the internet. To establish themselves on the internet, corporations must register a domain name. Those individuals who were able to register their domain names are corresponding to famous trademarks. These individuals have been called Cybersquatters. Network Solution, Inc. (‘NSI’) distributed all domain names to registrants. Now, multiple registrants (including NSI) distribute Internet Domain Names. Assuming that a corporation wants to register a domain name using “.com” or “.net” as a top level domain, a corporation must use a register accredited by the internet corporation for assigned names and numbers (“ICANN”) these registrars now follow a uniform dispute resolution policy to decide competing claims for domain names. Dispute resolution policy’s only remedy is cancellation or transfer of the domain name registration. This consequence may be inadequate to deter cybersquatting.
When the internet was young, domain name disputes were new phenomena. After all, never had there ever been something quite like cybersquatting. After centuries of development, traditional trademark infringement, but trademark infringement, but “trademark infringement” had always been predicated on “use”, i.e. in order to infringe someone’s trademark right, the infringer must have actually “used” the trademark owner’s mark in commence without authorization. ' But trademark law could not adequately deal with Cybersquatting did not necessarily involve “use” of a trademark in commence. There after one court admirably attempted to harness old-fashioned trademark law in order to address these new phenomena of Cybersquatting.
Elements of Cybersquatting
The Anti-cybersquatting consumer protection act (“ACPA”) is a statute under the lanham act which specifically protects domain names from Trdemark Infringement. The elements which must be proven to establish cybersquatting under the Anti-Cybersquatting Consumer Protection Act “ACPA” creates liability. Under the ACPA a plaintiff must shows that:
1. The defendant registered, trafficked in, or used a domain name.
2. It has a valid trademark entitled to protection.
3. Its mark was distinctive or famous at the time the domain name was registered.
4. The domain name is identical or confusingly similar to a protected mark owned by the plaintiff.
5. The defendant acted with ‘bad faith’ intent to profit from the mark.
Recent years have seen a step rise cybersquatters cases across India, whose e-commerce industry is continuously growing. With close to 350 million users, India has emerged as being the country with the second highest number of internet users in the world. It comes as little surprise amid such figures that cybersquatting has been on the rise across the nation, and over the last decade or so, Indian courts have seen their fair share of cases dealing with such practices.
Cases on cybersquatting
There are currently no laws or statutes in India expressly prohibiting cybersquatting, also known as domain squatting, and as such, disputes surrounding these practises are mainly governed by the principle of “passing off”. In this regard, Supreme Court in Satyam Infoway Ltd V Sifynet Solutions [2004(3) AWC 2366 SC] stated that:
“As far as India is concerned, there is no legislation which explicitly refers to dispute resolution in connection with domain names… although the operation of trademark for adequate protection of domain names, this does not mean that domain name are not to be legally protected to the extent possible under the laws relating to passing off.”
“cybersquatting” is a term that is loosely used to describe the registration or use of a domain name i.e. confusingly similar to someone else Trademark, without permission. One of the earliest judicial references to “cybersquatting” is a 1998 opinion from the U.S. District Court for the central district court of California,
Avery Dennison Corporation v. Jerry Sumpton. The case decided before the arrival of the Uniform Domain Name Dispute Resolution Policy (UDRP) involved a dispute over the domain names <avery.net> and <dennision.net>, which were identical to two trademarks owned by the plaintiff. (Interestingly, the District Court granted Avery Dennison Corporation’s motion for summary judgement –a decision that was later reversed by the U.S. court of appeals for the Ninth Circuit.)
Yahoo Inc. V Akash & Anr(1999 IIAD Delhi 229)
It was first case that was reported in India regarding cybersquatting. In this case, plaintiff was a registered owner of the domain name “yahoo.com”. He obtained an interim order which restrained the defendants from dealing the name “yahooindia.com” or any other trademark similar to the trademark of the plaintiff.
Tata Sons Ltd v. Ramadasoft
In this case, the defendant had a domain name registered in the name of Tata. It was held in this case that a domain name not only involves addresses but also the trademark of the companies. The domain names in this case, were similar to the plaintiff’s trademark and that and the defendant had used the names with mala Fide intention.
These facts entitled the defendant to transfer domain names in the favor of the plaintiff. Sbicards. Com vs. Domain Active Property Ltd.
The administrative panel, in this case said that defendant an Australian entity had a registered domain name which was with mala ide intention and it could have attracted attention from the public because of its affiliation to SBI Cards products and services.
The following is a selection of notable cybersquatting cases that have taken place in India: Rediff Communication Limited v Cyber booth (AIR 2000 Bombay 27)
Titan Industries Ltd v Prashanth Koorapati & Others (Delhi High Court Suit No. 179 of 1998, Decision dated 28th January 1998) Dr Reddys Laboratoy Ltd v Manu Kosuri[2001PTC 859(Del)]
Tas Ltd v Manu Kosuri & Ors.[III AD Delhi 545, 90(2001)]
• www.iptjournal.com/cybersquatting cases: India
• https://giga.law/blog /2015/11/18/ origin of ‘ cybersquatting’