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CYBERSQUATTING.

Updated: Aug 16

CYBERSQUATTING


Cybersquatting is the registration, trafficking in, or use of a domain name that is either identical or confusingly similar to a distinctive trademark or is confusingly similar to or dilutive of a famous trademark.


Cybersquatting occurs where one registers a domain name containing the trademark of another with the intent to profit from the sale or use of that domain name. Cybersquatting can be devastating to a business.


Certain examples of cybersquatting can be :-


Cybersquatting can be of various categories, most commonly seen is typo squatting, when a cyber squatter registers domain names containing variant of popular trademarks. Typo squatters rely on the fact that Internet users will make typographical errors when entering domain names into their web browsers. Some common examples of typo squatting include:


· The omission of the “dot” in the domain name: wwwexample.com;

· A common misspelling of the intended site: exemple.com

· A differently phrased domain name: examples.com

· A different top-level domain: example.org


Moreover cyber squatters also rely on the fact that trademark holders often forget to re-register their domain names, because domain registration is for a fixed period and if the owner does not re-register the domain name prior to expiration, then the domain name can be purchased by anybody. Cyber squatters will snatch up a domain name as it becomes available. This process is often referred to as “renewal snatching.”


What is Domain name?


A domain name is the website’s name. A domain name is the address where Internet users can access the website. A domain name is used for finding and identifying computers on the Internet. Computers use IP addresses, which are a series of number. However, it is difficult for humans to remember strings of numbers. Because of this, domain names were developed and used to identify entities on the Internet rather than using IP addresses.


A domain name can be any combination of letters and numbers, and it can be used in combination of the various domain name extensions, such as .com, .net and more.

The domain name must be registered before you can use it. Every domain name is unique. No two websites can have the same domain name.


Legal position


In 1999, Congress enacted the Anti-Cybersquatting Consumer Protection Act (“ACPA”). 15 U.S.C. § 1125(d). The Act creates a cause of action for anyone who registers or uses a domain name that is confusingly similar to, or dilutive of, the trademark or personal name.


Conditions to be fulfilled to bring action under this Act were:


1. The mark must have been distinctive. In other words, the mark must have enjoyed trademark status at the time that the domain name was registered. If the claim is that the domain name dilutes the mark the mark must have been famous at the time that the domain name was registered.


2. The plaintiff must also provide evidence that the “squatter” acted with bad faith intent to profit.


Internationally, the United Nations copyright agency WIPO (World Intellectual Property Organization) has, since 1999, provided an arbitration system wherein a trademark holder can attempt to claim a squatted site. In 2006, there were 1823 complaints filed with WIPO, which was a 25% increase over the 2005 rate. In 2007 it was stated that 84% of claims made since 1999 were decided in the complaining party’s favor.


WIPO is the UN’s specialized agency for developing a balanced and accessible international system in the field of intellectual property rights.


Position in India


In India we don’t have separate laws for cybersquatting and cases regarding it are decided under the Trade Marks Act, 1999. Though the Indian Judiciary has been able to differentiate between trade mark and domain name in the case of Satyam Infoway Ltd v. Sifynet Solutions Pvt Ltd. the problem with using the Trade Marks Act is that it does not have extra-territorial jurisdiction which may not provide sufficient protection to domain names.


Judicial decisions on Cybersquatting:-


1. Yahoo! Inc. v. Akash Arora and Anothers [1999]: an attempt was made to use the domain name <yahooindia.com> for Internet related services as against domain name i.e. <yahoo.com>. The court held that there were similarity between them and a user can get confused between the two almost identical domain name.


2. Tata Sons Limited and Anr Vs fashion ID Limited [2005]: The Hon'ble High Court of Delhi Court held that the use of the similar domain name may lead to a diversion of users which could result from such users mistakenly accessing one domain name instead of another. This may occur in e-commerce with its rapid progress and instant accessibility to users and customers.


3. Dr Reddy's Laboratories Limited Vs Manu Kosuri and Anr [2001]: The domain name 'DR. REDDY'S' of the plaintiff and 'drreddyslab.com' of the defendants are almost similar except for use of 'lab.com' in the defendants domain use. The level of the similarity of the marks usually is vitally important and significant in such a case, there is every possibility of confusion and deception being caused. Considering both the domains' name, it is clear that two names being almost identical or similar in nature, there is every possibility of an Internet user being confused and deceived in believing that both the domain names belong to plaintiff although the two domain names belong to two different concerns".


4. Bennett Coleman & Co Ltd Vs. Steven S Lalwani [2000]: Since 1996, the complainant has held the domain name, “www.economictimes.com”, using it for the electronic publication of their respective newspapers. The complainant had registered in India this mark for literary purposes.However, in 1998, Steven S. Lalwani, USA registered the same domain name.The WIPO judgement made it clear that the complainant have a very substantial reputation. It was also categorically held that the registration and use of the domain names by the respondents is with malafide intention done especially for commercial benefit.


Conclusion


In today’s world the cyber space is gaining a very important place in our life. With increase in the use of internet there has been increase online businesses and hence online transactions. With increase in these transactions there has been an increase in cyber-crimes as well. It is very important and now has become a necessity to enact laws particularly for cyber-squatting in India as just the Trade Marks Act is not sufficient now. Cybersquatting is a big concern for the domains which conduct financial transactions as cyber-squatters fool people and use their card details. There is an urgent need for such laws to avoid crimes in future. The new law should enable the trademark owners to punish the squatters who acquire these domain name in bad faith. Also there should be provisions made which will enable the aggrieved party to claim and get pecuniary damages suffered due to such illegal activities like it is given in the US.

Author: Navin Kumar Jaggi

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