CYBER SQUATTING IN INDIA

This content is researched and drafted by Akella Poornima, IIIrd Year LL.B (2018-2021) student at Symbiosis Law School, Pune, India.

INTRODUCTION

With the revolution in business and trade using internet, the graph of development has shown an immense growth, also inevitably attracting cyber-crimes and giving rise to unhealthy competition. The rivals try to misuse the domain names of reputed businessman and encash their goodwill for their profit-making. Challenge at this stage is to overcome such exploitation in the field of intellectual property.

Therefore, cybersquatting exists, to protect the domain names of true owners from such people having malicious intentions.  Cybersquatting is a practice through which such malpractice vis-à-vis domain names can be prevented or curbed.

WHAT IS CYBERSQUATTING?

‘Cybersquatting’ is a process associated with the registration of domain names, where the sale or use of domain name takes place by a person who has registered himself with such mark which is deceptive in nature, thereby extracting monetary benefit from the goodwill of the original mark. Cybersquatters buy domain names of marks that are similar to the marks that have goodwill in the society. For example, “DellFinancialServices.com” was a party that registered its URL and this was deceptively similar to that of the infamous brand “Dell”. They had deliberately registered for a misspelled similar name to confuse the customers and gain profit out of Dell’s goodwill.

In Manish Vij v. Indra Chugh [1], the court held that: “an act of obtaining fraudulent registration with an intent to sell the domain name to the lawful owner of the trademark at a premium is called ‘cybersquatting’”[2].

There are four types of cybersquatting in India:

• Typo Squatting – Typo squatters take advantage of mistakes done by users while surfing on the internet. It is also called as ‘URL hijacking’, ‘a sting site’, and ‘a fake URL’. They create a fake website that is deceptively similar to another trademark having goodwill in the market. By such means, they confuse the customers and encash money from them. Their main purpose is to generate traffic and spread malware.
• Identity Theft– Sometimes, the true owners of URL fail or forget to renew their URL. Thus, the cyber squatters purchase such domain names. These squatters maintain a unique software which is efficient to track and monitor the expiry dates of targeted domain names.
• Name Jacking– Cyber squatters, in this case, target the goodwill of the business as well as big-shot names associated with it. For example, the cases where public figures associate themselves with certain domain names, or have URLs registered under them for doing business, are the most targeted ones.
• Reverse Cybersquatting – Here, to secure the URL of the legitimate owner, an attempt is made by intimidating or pressuring the original owner to transfer his ownership to the organization who has a trademark similar to the previous one.

With all of these, the main disadvantage which affects the original trade is the reputation that is put at stake by theses cybersquatters. For example, PETA once was attacked by a cybersquatter who named themselves, “People Eating Tasty Animals”.

CYBERSQUATTING INFRINGEMENT

India, though adopted the policy of ‘Uniform Domain Name Dispute Resolution Policy (UDRP)’, still lacks a concrete legislation on the same. UNDP is an internet-based system for resolving complaints that arise out of trademark infringement. But for claiming infringement, the trademark must be registered and with respect to UNDP, in the absence of a legislation, it is governed by the principles of passing off.

In Yahoo Inc v. Akash Arora[3], the plaintiff sought a permanent injunction to stop the defendants from using “yahooindia.com” for commercial purposes as it was deceptively similar. Though the defendants argued that Yahoo was not registered as a trademark in India and therefore there was no locus of it being infringed, the court granted an injunction to the plaintiff on the basis that the services rendered on the internet are recognized worldwide.

In an attempt to question whether domain names come under the purview of trademarks or not, in Tata Sons Limited and Anr v. Fashion ID Limited, [4] the court held that the use of same or similar domain names may confuse the users on the internet if they mistakenly end up accessing the deceptive URL, and this overlap is potential enough to affect e-commerce. Therefore, it is not wrong to keep domain names under the realm of trademark registration and further treat its infringement by the action of passing off.

CONCLUSION

Cybersquatting is a cybercrime growing rapidly in this digitalized society. The domain names or URLs are provided like IP addresses to help ease out e-commerce and other purposes on the internet, and not for unethical cyber squatters to misuse the hard work and goodwill. The US, like always, has taken the initial step to recognize the rights and immunities of the domain name owners but India still stands at a retro perspective in curbing this branch of cybercrimes. Though Indian courts have legislation like the IT Act, 2000 to deal with internet-based crimes, the concept of cybersquatting is still to make its road of relevance there. Also, through various precedents, the courts have green signaled the protection of domain names through trademark infringement. Therefore, it is now the duty of lawmakers to entail the same in a legislation.

REFERENCES

• Internet Cybersquatting: Definition and Remedies, Created by FindLaw’s team of legal writers and editors, available by https://smallbusiness.findlaw.com/business-operations/internet-cybersquatting-definition-and-remedies.html
• Cybersquatting: Threat to Domain Name Sukrut Deo, Sapna Deo, available at https://www.ijitee.org/wp-content/uploads/papers/v8i6s4/F12910486S419.pdf
• India: Domain Name Disputes and Cybersquatting in India – Part I, by Pratibha Ahirwar, available at https://www.mondaq.com/india/trademark/783958/domain-name-disputes-and-cybersquatting-in-india-part-i#:~:text=Cybersquatting%20is%20a%20type%20of,set%20up%20their%20own%20website.

[1] AIR 2002 Del 243

[2] R.P. Kataria, S.K.P.Srinivas,” Cyber Crimes Law Practice and Procedure”, Orient Publishing Company2013, pp.350

[3] 78 (1999) DLT 285

[4] (2005) 140 PLR 12