trademark disputes over domain names

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Trademark Disputes over Domain Names

By

PRANJAL SRIVASTAVA


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CONTENTS

Sr. No. CONTENTS PAGE NO.

I INTRODUCTION 1

II UNDERSTANDING DOMAIN NAME 2

III DOMAIN NAME & INTELLECTUAL PROPERTY 3

IV REGISTERING A DOMAIN NAME 4

V DEFECT OF REGISTERING PROCESS OF DOMAIN NAME 7

VI KINDS OF DOMAIN NAME DISPUTES

a.Cyber squatting

b. Diversion of traffic

c. Twins-Competing right dispute

7

VII DISPUTE RESOLUTION SYSTEM

A- INTERNATIONAL REGIEME

B-INDIA AND DOMAIN NAME ISSUES

11

VIII CASE LAWS 22

IX CONCLUSION 27

X BIBILOGRAPHY 28

Case List


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1. American Inc. v. Richard Bucci USPQ 2D (BNA) 1430 U.S. Dist-Lexis 3338 (SDNY 1997)2. American Standard Inc v. Toeppen 96 CVO 2147, 1996 U.S. Dist. Lexis 144513. Bennett Coleman & Co Ltd. v. LongDistance Telephone Company 2000-0015, WIPO4. BennettColeman & Co Ltd. v. Steven S Lalwani Cases No D2000-00145. Google Inc.v.Herit Shah Case No. D2009-04056. MTV Networks v. Curry 867 F.Supp 202 (S.D.N.Y. 1994)7. Polaroid Corp v. Polar Electornic Corp 287 F 2d 4928. Princeton Review v. Kaplan 94 Civ. 1604 (MGC) S.D.N.Y., filed March 19949. Rediff Communications Ltd. v. Cybertooth & Another AIR 2000 Bom 2710. RediffCommunication v. Cyberbooth & Anr AIR 2000 Bom. 27,2000(1) RAJ 562(Bom11. Satyam Infoway Ltd. vs. Sifynet Solutions P. Ltd 2004(28) PTC 56612. Tata Sons Ltd v. Monu Kasuri & others 2001 PTC 43213. World Wrestling Federation Entertainment, Inc. v. Michael Bosman 1 N.C. J.L. &

Tech. 3 (2000)

14. Yahoo Inc. V. Aakash Arora & Anr. 1999 PTC(19) 201

I. INTRODUCTION


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With the globalization and commercialization of the Internet, domain names have taken on a new

significance as business identifiers. When the Internet was in its infancy, domain names were

created to serve as useful mnemonic means of locating specific computers on the Internet.

Domain names are now highly visible in "real space" as well - showing up on television

commercials, billboards, magazine ads, and even the sides of buses.

The very basis of Internet is Internet Protocol (IP) used for inter computer / inter server

communication, each computer / server having its own unique all numeric IP address. The fact

that these addresses are not catchy and are difficult to remember has had a major role to play in

the development of the DNS and the emergence of domain names as corporate assets. Thus, a

domain name is a popular substitute for the all numeric IP address of a particular server. To

make an Internet address more user friendly, a unique numeric address may be matched with a

mnemonic domain name. This systematization of recognition of proxy names is categorized as

the Domain Name System.

The article tries to briefly outline the present structure of the Domain Name System, how are

Domain Names and Intellectual Property rights (IPR) inter-related the problem relating to Cyber

squatting in the cyberspace and the Domain Name Dispute Resolution Policy and mechanism

reflecting of ICANN1 and the Indian scenario.

The original role of a domain name was to provide an address for computers on the Internet. The

Internet has, however, developed from a mere means of communication to a mode of carrying on

commercial activity. With the increase of commercial activity on the Internet, a domain name is

also used as a business identifier. Therefore, the domain name not only serves as an address for

Internet communication but also identifies the specific Internet site. In the commercial field, each

domain name owner provides information/services, which are associated with such domain

names. Domain names are used in various networking contexts and application-specific naming

and addressing purposes.

1The Internet Corporation of Assigned Names and Numbers


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II. UNDERSTANDING DOMAIN NAME-Domain names can be termed as the Addresses of computers connected to the Internet e.g. street,

city name and country. This unique identification number is called the Internet protocol address.

The letter sent by post requires addressed envelope, digital post also requires a suitable digital

padded envelop in which the message is encoded and sent. Typing the domain name in a web

browser would cause the system to look up the destination address where data will be sent.

A domain name is a term used by Internet user to instruct their computers to obtain the

Internet protocol number of a desire website. Since the I.P2. address is a string of meaningless

numbers which are difficult for human being to remember, a system has been devised to

overcome this problem. This system was names as Domain Name System (DNS), Domain names

are composed of letters and numbres which are neither random nor meaningless and are easy to

remember. All domain names include a Top Level Domain (TLD), which is a string of two or

more letters located at the extreme right handside of the domain name following the decimal

point or dot. The second level domain (SLD) is requested by the party seeking the domain

assignment. There are two categories of TLSs. In the first category, we have the TLD, names like

com, net, org, edu. Recently Internet Corporation for Assigned Names and Numbers. (ICANN)

has announced the introduction of seven more TLDs, in this category. The second category of

TLDs is geographical. The geographical TLDs are two character codes that indicate a particular

country or jurisdiction. The country codes are adopted from the 180-3166, standards developed

by the International Organisation for standardisation, for example, the country code for India is

'in' Domain names were originally intended to perform only the function of facilitating

connectivity between computers through the Internet, they have now come to constitute a form

of Business Indicator, as they are easy to remember and use. Businesses have started to realise

the significant potential of web sites as a primary means of facilitating electronic commerce.

Businesses intends to attract potential customers to their web sites and increase their market

2Internet Protocol Address


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visibility and ultimately their sales and profits, it has become a means of advertising of its

business on the net.

The Internet Corporation for Assigned Names and Number (ICANN) was formed to give

domain names on first come first served basis.

III. DOMAIN NAME & INTELLECTUAL PROPERTYNow, the question that arises is that, how are Domain Names and Intellectual Property rights

(IPR) inter-related? The answer lies in the understanding ofIntellectual property rights. So what

are these rights? Intellectual property (IP) is legal property right over creations of the mind, both

artistic and commercial, and the corresponding fields of law. Under intellectual property law,

owners are granted certain exclusive rights to a variety of intangible assets, such as musical,

literary, and artistic works; ideas, discoveries and inventions; and words, phrases, symbols, and

designs. The intellectual property rights provide creators of original works economic incentive to

develop and share ideas through a form of temporary monopoly.

Originally, Domain Names were conceived and intended to function as an address, but with an

increasing number of cases of registered domain names being illegally occupied (cyber

squatting), it has posed additional problems in how to handle trademark disputes in cyberspace.

Cyber squatting as an offence relates to the registration of a domain name by an entity that does

not have an inherent right or a similar or identical trademark registration in its favour, with the

sole view and intention to sell them to the legitimate user in order to earn illegal profits. An

address in the cyber-space is imperative in the new e-economy for companies and individuals to

be easily traceable by their consumers with the emergence of the Internet as an advertising

forum, recruiting mechanism, and marketplace for products and services whereby companies

doing business have a strong desire to register domain names akin to their products, trade names

or trademarks. For example, owners of famous trademarks, such as Haier, typically register their

trademarks as domain names, such as www.haier.com. Domain names may be valuable corporate

assets, as they facilitate communication with a customer base. With the advancement of Internet


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communication, the domain name has attained as much legal sanctity as a trademark or trade

name and, therefore, it is entitled to protection.

Another issue is the registration of names of popular brands with a slight spelling variation like

pesi.com and radiff.com for the sole purpose of diverting traffic to their website through typing

errors. A significant purpose of a domain name is to identify the entity that owns the website. A

domain name should not confuse the consumers as to the origins of the services or products

defeating the principal of trademark law. InRediff Communications Ltd. v. Cybertooth &

Another 3the Bombay High Court while granting an injunction restraining the defendants from

using the domain name RADIFF orany other similar name, held that when both domain names

are considered there is every possibility of internet users being confused and deceived into

believing that both domain names belong to one common source and connection although the

two belong to two different persons. Again the website using the domain name, Naukari.com

was held to be confusingly similar to that of the plaintiff, naukri.com, with a different spelling

variant establishing prima facie inference of bad faith.

IV. REGISTERING A DOMAIN NAMEUnder the Old Rule, the registration of domain name was done on a first come first served basis.

The third party has to prove that domain name infringed its rights, e.g. causing confusion in the

minds of consumers as to the origin of goods or services. Internic was not required to conduct a

trademark search for each proposed registration and to deny the registration depending on the

results of the search. Thus the Internic has not to decide about more worthy among competic

would be domain registrants. The U.S. Patent and domain registrants. The U.S. Patent and Trade

Mark Office argued that domain name is more valued, is a worldwide domain and that many

com registrants are physically located outside of the U.S.A.

New Rules-

3AIR 2000 Bom 27


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1. Internic will continue to allocate domain names on a First Come First Served Basis,

making no effort to screen applications to determine if use of a domain name by an

applicant might infringe upon the rights of a third party.

2. Domain name applicant must contain assent to the policy statement and any application

that fails to contain this assent language will be rejected by Internic. The applicant has

undertale to indemnify Internic and hold it harmless from any claims of trademark

infringment by granting a domain name registration to the applicant.

3. The applicant must assert a bonafide intention to use the domain name on a regular basis

on the Internet, and thus to discourage warehousing of possibly desirable domain names.

4. The applicant must represent that the use or registeration of the domain name by

applicant does not interfere with or infringe the right of any third party in any jurisdiction

with respect to trademark, service mark, trade name, company name or any other

intellectual property rights. Thus one company that makes air conditioners and the

another company that makes peppermint patties could make non-infringing use of

Mumbai Com. So long as the use did not give rise to confusion because Air conditioners

and candy are sold in differential retail channels and are not particularly likely to be

confused for each other.

5. The applicant must further represent that it is not seeking to use the requested domain

name for any unlawful purpose or for the purpose of confusing or misleading others e.g.

no BAD FAITH, in making the application.

6. The applicant is required to have operation name service from at least two operational

Internet name servers for that domain name. The name servers actually have to be

operating at the time to the Internet and capable of receiving queries under that domain

name and responding thereto.

7. If domain name goes without regular use for a period of 90 days or more, the

applicant/registrant must relinquish that domain name to Internic and thus making that


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domain name available for registration and use by another party. This provision is made

to avoid warehousing of domain names.

8. A third party can force the registrant to relinquish his domain name if he can prove to

Internic of ownership of a registered trade mark or service mark that is in full force and

effect and owned by him and it is indentical to domain name. Internic may assign a new

domain name to registrant up to 90 days to allow an orderly transition to the new domain

name. At the end of the transition period, Internic will place the disputed domain name

on hold Status, pending resolution of the dispute. As long as a domain name is on Hold

Status, that domain name will not be available for use for any party.

9. If the domain name registrant gives the proof of registration of trade mark or service

mark within 14 days to Internic, then the registrant can use the domain name until the

complaining party manages to get courts order, the registrant to stop using it.

10. If the contact details given in the application for registration of domain name are

inaccurate and unreliable and that contact could not be established with a domain name

holder through them, a third party should have the right to serve a notification to that

effect on the responsible registrar. Upon independent verification of the impossibility of

establishing contact, the registrar should be required to cancel the domain name

registration.

11. This NSI, Internic does not provide any protect to unregistered trade marks or those

marks registered only at the local level.

12. Internic cannot grant monetary damages or attorney fees to the winning parties.

V. Defect of registering process of domain name-


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The application was not subjected to any substantive examination to determine whether the

applicant has a valid right to use that particular name or whether there is a likelihood of

consumer confusion between the submitted name and a currently registered trade mark e.g. the

question of legitimacy of the representation was not considered at the time of registeration of

domain name,

Trade marks are names and symbols that a company uses to identify its product or service

in the market place .The trade mark act gives protection to prior uses exclusive rights in a

specific mark, thereby helping in eliminating consumer confusion and a depreciation of the

mark's inherent goodwill value. The mark must have a distinctness, adn it is not granted on first

come first served basis.

VI. KINDS OF DOMAIN NAME DISPUTES(a)Cyber squatting--

Some enterprises registered the names or trade marks of well known companies as domain

names with the sole intention of selling the names back to the companies when they finally

woke up. Panasonic, Tata, Beenet and Coleman and Avon were the victims of cyber

squatters.

Domain Name registration gives a right of users of name in the whole world whereas

trade mark registration gives rise to rights which are exercisable only within territory where it is

registered.

Cyber squatting is the deliberate bad faith abusive registration of a domain name in

violation of rights in trademarks and service marks.

Abusive registration of domain name is defined as under:-

1. The domain name is identical or misleadingly similar to a trade or service mark in which

the complainant has rights; and


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2. The holder of the domain name has no rights or legitimate interests in respect of the

domain name; and

3. The domain name has been registered and is used in bad faith.

A domain name shall be registered and used in bad faith,-

(i) When there is an offer to sell, rent or otherwise transfer the domain name to the owner of

the trade or service mark or to a competitor of the owner of the trade or service mark, for

valuable consideration; or

(ii) When there is an attempt to attract, for financial gain, Internet users to the domain name

holder's website or other on line location, by creating confusion with the trade or service

mark of the complainant; or

(iii) When the domain name has been registered in order to prevent the owner of the trade or

service mark from reflecting the mark in a corresponding domain name, provided that a

pattern of such conduct has been established on the part of the domain name holder; or

(iv) When the domain name is registered to disrupt the business of a competitor.

Both the Paris convention and the Trips Agreement establish obligation for the protection

of trade marks. Paris Convention establishes an obligation to provide protection against unfair

competition. The rules stipulate the safeguard from unfair competition.

ICANN has made provision for Dispute Resolution for Abusive Domain Name

Registration. The Administrative remedy provided in this Resolution are as under-

(a) Cancellation of the domain name registeration;

(b) The transfer of the domain name registeration to the third party;

(c) Allocation of the responsibility for payment of the costs of the proceeding.

The complainant is not precluded from initiating the Court's proceeding if the

complainant deems fit and proper course of action to vindicate his rights.


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Domain name Registry assign names without any necessity of prior clearance and use a result, a

person can obtain a domain name of a famous trademark or brand name even if he has no

connection with that name. The Court has followed the trade mark infringement rules to

decide such dispute e.g. one person should not pass off his goods or services as being that

of another.

The Court has not insisted upon likelihood of confusion generally in such cases but has

relied on dilution theory. Under this doctrine, certain famous marks would be entitled to

protection against weakening of the value of the mark, even if there is no likelihood of

confusion. In U.S. the accused infringer cannot use the defence that his goods and services donot

overlap with those of the trade mark owner. The New Your Court held that the cause of action

for dilution is likelihood of injury to the business reputation or of dilution of the distinctive

quality of a mark or trade name. "Mere registeration of a trademark as a domain name, without

making any use of it, would amount to dilution. Mere registeration would amount of commercial

use.American Standard Inc v. Toeppen,4

(b) Diversion of traffic-

Where a person registers a domain name reebuk.com' in order to divert domain name traffic from

'rebok com.' The U.S. Planned Parenthood Federation ofAmerican Inc. v. Richard Bucci,5 the

Court held that the requirement of trademark infringement, such as the proximity of goods and

service factor, are met simply by the fact that both parties have websites, and both the parties

were competing for the same audience, it is submitted that the Court has overlooked the fact that

the trademark Act permit any other person to register the same trademark with respect to some

other class of goods.

496 CVO 2147, 1996 U.S. Dist. Lexis 14451

5USPQ 2D (BNA) 1430 U.S. Dist-Lexis 3338 (SDNY 1997


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(c) Twins-Competing right dispute-

Such dispute arises where both parties have trademark registeration either relating to the same

product in different countries or to different products in the same country. If both parties want to

register the trademark as a domain name, the Trademark and unfair Competition law might

generally allowed both the parties to enjoy concurrent use of the name, and to grant one

preference over the other would be unfair.

The Court may adopt any of following means to resolve the dispute-

(i) In the case of trademark for the same product registered in different countries, each

trademark owner should have priority in his country's TLD.

(ii) In the case of trademarks for different products within the same country, each should be

required to distinguish his domain name by way of some mention of the product.

The U.S. Court of Appeals inPolaroid Corp v. Polar Electornic Corp.6had adopted an

eight factor test for likelihood of confusion:-

1. The strength of plainrif's mark2. The similarity of plaintiff's mark3. The competitive proximity of the products.4. the likelihood that plaintiff will bridge the gap and offer a product like defendant's5. Actual confusion between products.6. Good faith on the defendant's part.7. The quality of defendant's product and8. The sophistication of the buyers.

6287 F 2d 492


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VII. DISPUTE RESOLUTION SYSTEMA.International Regime

1. Federal Trade Mark Dilution Act, 1996:The Federal Trademark Dilution Act of 1995 is a United States federal law which

protects famous trademarks from uses that dilute their distinctiveness, even in the absence of any

likelihood of confusion or competition. Under this Act the owner of a famous and distictive mark

could obtain an injunction and in some cases damages for any commercial use of the mark that

causes 'dilution of the distinctive quality' of the mark. Nether competition with the mark's owner

nor likelihood of consumer confusion is required to show dilution. Any commercial use that

causes 'lessening of the capacity of the mark' to distinguish goods and service is adequate. The

plaintiff has to prove that trade name was famous. There had been some commercial use by the

cybersquatters. Generally these cases involves individuals who registered many domain names,

then offered them for sale to the trademark owners, where the facts were so compelling, the

Courts have usually had little difficulty finding for the plaintiff.

2. U.S. Anti Cyber squatting Consumer Protection Act, 1999:This Act amended section 43 of the Lanham Act 7by adding a subsection (d) this Act

provides for protecting the famous trade mark owners or to people whose personal names are

similar to the domain name. This Act tries to protect the interest of owners of both registered and

unregistered trade marks against use of their marks within domain names, and also safeguards

living persons against use of their personal name under certain circumstances. The owner must

prove that the domain name holder has a bad faith intent to profit from the mark, and the

defendant registers, traffic in or uses a domain name in a way that harms the owner's chimerical

interests. In the case of a distinct mark, the owner must show that the domain name is identical or

7The Lanham (Trademark) Act (title 15, chapter 22 of the United States Code) is a piece of legislation that contains

the federal statutes oftrademark law in the United States. The Act prohibits a number of activities,

including trademark infringement, trademark dilution, and false advertising.
http://en.wikipedia.org/wiki/United_States_federal_lawhttp://en.wikipedia.org/wiki/Trademarkhttp://en.wikipedia.org/wiki/Trademark_dilutionhttp://en.wikipedia.org/wiki/United_States_Codehttp://en.wikipedia.org/wiki/Trademarkhttp://en.wikipedia.org/wiki/United_Stateshttp://en.wikipedia.org/wiki/Trademark_infringementhttp://en.wikipedia.org/wiki/Trademark_dilutionhttp://en.wikipedia.org/wiki/False_advertisinghttp://en.wikipedia.org/wiki/False_advertisinghttp://en.wikipedia.org/wiki/Trademark_dilutionhttp://en.wikipedia.org/wiki/Trademark_infringementhttp://en.wikipedia.org/wiki/United_Stateshttp://en.wikipedia.org/wiki/Trademarkhttp://en.wikipedia.org/wiki/United_States_Codehttp://en.wikipedia.org/wiki/Trademark_dilutionhttp://en.wikipedia.org/wiki/Trademarkhttp://en.wikipedia.org/wiki/United_States_federal_law


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confusingly similar to its mark. In the case of a famous mark, the owner need only show that the

domain name is dilutive of the mark.

The confusing similar standard is to be applied without regard to the respective goods and

service of the parties. Famous has been to be proved in terms of ruling in Panavision V. Toeppen

if the mark was not famous, the plaintiff has to prove that cyberqutter was infringing trade mark.

For wrongful registeration, trafficking or use of domain name, the plaintiff is entitled to

relief of infunction, damages (i.e. defendant's profit) and upto three times damages and costs and

in exceptional cases, attorney fees. Statutory damages may be $ 1000 to $ 100,000 as the court

deems fit. This Act provides for cancellation or transfer of domain name to the plaintiff.

The plaintiff can bring in rem action against the domain name itself. Under the new law,

if the trade mark owner cannot obtain personal jurisdiction or if it sends notice to the holder at

both the postal address and the en-mail address listed in the registeration agreement and the

registrant does not answer, the trade mark owner can then proceed in rem against the domain

name itself.

A in rem suit can be brought in the judicial district where the registrar is located, or

where documents sufficient to establish control and authority regarding the disposition of the

registeration and use of the domain name are deposit with the Court. The Court can grant only

injunctive relief in the form of forfeiture, cancellation or transfer order and not the relief of

damages and attorney fees. The plaintiff can still file the regular suit for damages if it is possible

and effective.

3. ICANN Uniform Domain Name Dispute Resolution PolicyOn October 24, 1999, a new Uniform Domain Name Dispute Resolution Policy was promulgated

by ICANN, a California not-for-profit corporation that has assumed some of the duties of

administration of the DNS. ICANN operates under close supervision by the U.S. Department of

Commerce. NSI, the largest domain-name registrar, adopted the ICANN policy shortly

thereafter, and in November 1999 NSI ceased processing disputes under its old policy. Domain


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names that were placed on hold under the old NSI policy are now being reactivated, and parties

may seek relief under either the new ICANN policy or the new Anti-cyber squatting Consumer

Protection Act. The ICANN policy differs from the prior NSI policy-which had been in effect

since 1996-in three key respects. Under the new ICANN policy: the trademark holder is not

required to own a trademark registration for the mark that has been incorporated in the domain

name to which the trademark owner objects.

The domain name will not be suspended pending resolution of the dispute, the way the NSI

policy provided; rather, the status quo will remain until resolution.The policy will result in an

administrative decision that is final by its terms, rather than in suspension of a domain name

pending outside resolution. (However, an ICANN administrative decision is final only if neither

of the parties brings an action in court.)

The ICANN policy forbids registration of a domain name if

(1) the domain name is identical or confusingly similar to another's trademark,

(2) the entity registering the domain name has no legitimate right to it, or

(3) the domain name was registered and used in bad faith.

Disputes under the ICANN rules are referred to a one- or three-member administrative panel that

decides the dispute promptly and publishes the decision. The administrative decision is final and

binding on the registries and registrars subject to ICANN control, but it can be superseded by

court action. The proceeding is intended to be fast and inexpensive, to be conducted by e-mail

with no personal appearances, and to require minimal production of documents (unless

voluntarily offered by the parties or requested by the panel). The policy also offers some

protection to the domain-name holder, who may have legitimate rights to a domain name. The

policy permits the panel to rule that the complaint was brought in bad faith to "reverse hijack"

the domain name or to harass the domain-name holder. Relief for such conduct is limited to a

declaration of abuse of the administrative proceeding.


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The first dispute under the ICANN policy was decided on January 14, 2000, and has been

published by the World Intellectual Property Organization (WIPO), which provided the single

panelist. In World Wrestling Federation Entertainment, Inc. v. Michael Bosman,8 the domain

name at issue-"worldwrestlingfederation.com"-was registered by Bosman through an Australian

domain-name registrar. The panel found bad faith under the relevant factors in light of Bosman's

own statement that his primary purpose in registering the domain name was to sell it to the

WWF. Although Bosman had not established a Web site under the disputed domain name, the

panel found "use" in Bosman's offer to sell the domain name to the WWF.

One limitation on the usefulness of the ICANN policy is that it is a hybrid of mediation and

arbitration. By the terms of the policy, neither party to a proceeding is barred, at any time, from

resort to litigation in any court of competent jurisdiction. Any final judgment by such a court will

supersede any ruling by an ICANN dispute-resolution service provider.

United Kingdom:

There is no domain name specific legislation. Courts are relying on passing off and trade

mark infringement principle and India is also following the U.K. principle in deciding such

dispute.

B. INDIA AND DOMAIN NAME ISSUES1. Domain Name Issues

With the advancement of e-commerce, the domain names have come to acquire the same value

as a trademark or the business name of a company. The value attached to domain names makes it

lucrative for cyber criminals to indulge in domain name infringements and the global nature and

easier and inexpensive procedure for registering domain names further facilitates domain name

infringements. When a person gets a domain name registered in bad faith, i.e. in order to make

huge profits by registering a domain name corresponding to a trademark of another person, with

81 N.C. J.L. & Tech. 3 (2000)


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an intent to sell the domain name to the trademark owner at a higher price, such activities are

known as cyber squatting. The IT Act does not deal with the domain name issues. In India the

domain name infringement cases are dealt with according to the trademark law. The issue

concerning protection of domain names came up before the Supreme Court of India in the case

ofSatyam Infoway Ltd. vs. Sifynet Solutions P. Ltd9. The court, in an authoritative decision has

held that internet domain names are subject to the same legal norms applicable to other

Intellectual Properties such as trademarks. It was further held by the Supreme Court of India that:

The use of the same or similar domain name may lead to a diversion of users which could result

from such user mistakenly accessing one domain name instead of another. This may occur in e-

commerce with its rapid progress and instant (and theoretically limitless) accessibility to users

and potential customers and particularly so in areas of specific overlap. Ordinary

consumers/users seeking to locate the functions available less than one domain name may be

confused if they accidentally arrived at a different but similar website which offers no such

services. Such users could well conclude that the first domain name owner had misrepresented

its goods and services through its promotional activities and the first domain owner would

thereby lose their custom. It is apparent therefore that a domain name may have all the

characteristics of a trade mark and could found an action for passing off.

The court further held that there is no legislation in India which explicitly refers to dispute

resolution in connection with domain names. The operation of the Trade Marks Act, 1999 is also

not extra territorial and may not allow for adequate protection of domain names. This does not

mean that domain names are not to be protected legally to the extent possible under laws of

passing off.

However, with most of the countries providing for specific legislations for combating and

curbing cyber squatting, India also needs to address the issue and formulate legal provisions

against cyber squatting. For settlement of Disputes, WIPO has introduced a new mechanism

92004(28) PTC 566


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called ICANN (Internet Corporation for Assigned Names and Numbers) for settlement of

disputes relating to domain names. As the parties are given the right to file the case against the

decision of ICANN in their respective jurisdictions, the decisions of ICANN is having only

persuasive value for the domain users.

We know that a domain name is easy to remember and use, and is chosen as an instrument of

commercial enterprise not only because it facilitates the ability of consumers to navigate the

internet to find websites they are looking for, but also at the same time, serves to identify and

distinguish the business itself, or its goods or services, and to specify its corresponding online

internet location. Consequently where a domain name is used in connection with a business, the

value of maintaining an exclusive identity becomes critical. As more and more commercial

enterprises trade or advertise their presence on the web, domain names have become more and

more valuable and the potential for dispute is high. Whereas a large number of trademarks

containing the same name can comfortably co-exist because they are associated with different

products, belong to business in different jurisdictions etc, the distinctive nature of the domain

name providing global exclusivity is much sought after. The fact that many consumers searching

for a particular site are likely, in the first place, to try and guess its domain name has further

enhanced this value.

The law does not permit any one to carry on his business in such a way as would persuade the

customers or clients in believing that the goods or services belonging to someone else are his or

are associated therewith. It does not matter whether the latter person does so fraudulently or

otherwise. The reasons are:

Honesty and fair play are, and ought to be, the basic policies in the world of business.When a

person adopts or intends to adopt a name in connection with his business or services, which

already belongs to someone else, it results in confusion and has propensity of diverting the

customers and clients of someone else to himself and thereby resulting in injury

Thus, a Domain Name requires a strong, constant and instant protection under all the legal

systems of the world, including India. This can be achieved either by adopting harmonization of


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laws all over the world or by jealously protecting the same in the municipal spheres by all the

countries of the world.

2. Trademarks vs. Domain names

There is a distinction between a trademark and a domain name, which is not relevant to the

nature of the right of an owner in connection with the domain name, but is material to the scope

of the protection available to the right. The distinction lies in the manner in which the two

operate.

A trademark is protected by the laws of a country where such trademark may be registered.

Consequently, a trademark may have multiple registrations in many countries throughout the

world.On the other hand, since the internet allows for access without any geographical limitation, a

domain name is potentially accessible irrespective of the geographical location of the consumers.

The outcome of this potential for universal connectivity is not only that a domain name would

require world wide exclusivity but also that national laws might be inadequate to effectively

protect a domain name.

The defense available to such a complaint has been particularized but without limitation, in

Rule 4 (c) as follows:

(i) Before any notice to the domain name owner/registrant, the use of, or demonstrable

preparations to use, the domain name or a name corresponding to the domain name in connection

with bona fide offering of goods or services; or

(ii) The domain name owner/registrant (as an individual, business, or other organization) has

been commonly known by the domain name, even if it has acquired no trademark or service

mark rights; or

(iii) The domain name owner/registrant is making a legitimate non-commercial or fair use of the

domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish


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the trademark or service mark at issue.

3-Disputes resolution system in India

Rules indicate that the disputes may be broadly categorized as:

Disputes between trademark owners and domain name owners and Between domain name

owners inter se.

A prior registrant can protect its domain name against subsequent registrants. Confusing

similarity in domain names may be a ground for complaint and similarity is to be decided on the

possibility of deception amongst potential customers. The defenses available to a complaint are

also substantially similar to those available to an action for passing off under trademark law.

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 extra territorial 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.

In India, the Trademarks Act, 1999 (Act) provide protection to trademarks and service marks

respectively. A closer perusal of the provisions of the Act and the judgments given by the Courts

in India reveals that the protection available under the Act is stronger than internationally

required and provided.

Rule 2 of the UDNDR Policy requires the applicant to determine that the domain name for which

registration is sought, does not infringes or violates someone elses rights. Thus, if the domain

name, proposed to be registered, is in violation of another persons trademark rights, it will

violate Rule 2 of the Policy.

In such an eventuality, the Registrar is within his right to refuse to register the domain name.

This shows that a domain name, though properly registered as per the requirements of ICANN,

still it is subject to the Trademarks Act, 1999 if a person successfully proves that he has rights

flowing out of the Act.


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The ccTLDs category is specific and distinct from the gTLDs and correlate to the names of

specific countries and territories. Various corporations today not only register their trade name

and their core brands as gTLDs, but also as ccTLDs in select countries where they see future

business potential. Functionally, there is no dissimilarity between the gTLD and the ccTLD. A

domain name registered in a ccTLD provides exactly the same connectivity as a domain name

registered in a gTLD. There are at present more than 200 ccTLDs. Each of these domains bears

a two letter country code derived from Standard 3166 of the International Standardization

Organization

An example would be: Yahoo.com is a gTLD. However, Yahoo.co.in would be a ccTLD

registered in India. Similarly, Yahoo.co.au would be a ccTLD registered in Australia.

The administration of a ccTLD is left to the specific country concerned and thus each ccTLD

policy is distinct from the other. For example, the administration of domain names within

the .in (Indian) category is overseen by NIXI (National Internet eXchange of India). Similarly,

registrations in the UK are overseen by a body known as Nominet.

Under NIXI, the INRegistry, functions as an autonomous body with primary responsibility for

maintaining the .IN ccTLD and ensuring its operational stability, reliability, and security,

implementing the various new policies set out by the Government of India and its Ministry of

Communications and Information Technology, Department of Information Technology.

IN Registry has assumed responsibility for the registry from the previous registry authority, The

National Centre for Software Technology (NCST) after the Government decided to revamp the

administration of the .IN registry in late 2004.This change was announced via an executive order

through a gazette notification issued by the Department of Information Technology (DIT),Government of India, according a legal status to the IN Registry

IN Registry does not carry out registrations itself. Instead, it accredits registrars through a

process of selection on the basis certain eligibility criteria.


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Usually a domain names may be registered for a minimum of one (1) year, and a maximum of

five (5) years. Domains automatically renew at the end of their term. .IN domain names may be

between 3 and 63 characters in length. Only letters, digits, and hyphens are accepted in a domain

name. It is proscribed to begin or end domain names with hyphens. For names in the unrestricted

zones registrants are allowed to transfer their domains to the registrar of their choice. The

registry holds the authority to deny or suspend a registration if it conflicts with the sovereign

national interest or public order.

Owners of registered Indian trademarks or service marks were also allowed a Sunrise Period to

protect their marks online. The sunrise period gave preference to Indian citizens and companies

over entities from abroad.

".In" Dispute Resolution Process

The IN Registry has published the .IN Dispute Resolution Policy (INDRP) which is a mandatory

dispute resolution procedure. India does not subscribe to UDRP. However, INDRP has been

formulated in lines of UDRP, internationally accepted guidelines, and with the relevant

provisions of the Indian IT Act 2000.

INDRP sets out the terms and conditions to resolve a dispute between the Registrant and the

Complainant, arising out of the registration and use of the .in Internet Domain Name. Para 4,

INDRP is strikingly similar to Para 4 (a) of the UDRP and constitutes the same essential

premises for filing a complaint. INDRP makes it obligatory on the Registrant to submit to

arbitration proceeding in an event a complaint is brought against the same with .IN Registry.

Upon receipt of complaint the .IN Registry shall appoint an Arbitrator out of the list of

arbitrators maintained by the Registry. Within 3 days from the receipt of the complaint the

Arbitrator shall issue a notice to the Respondent. The Arbitrator shall then conduct the

Arbitration Proceedings in accordance with the Arbitration & Conciliation Act 1996 and also in

accordance with this Policy and rules provided there under


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Once the arbitrator is appointed the .IN Registry shall notify the parties of the Arbitrator

appointed. The Arbitrator shall pass a reasoned award and shall put forward a copy of it

immediately to the Complainant, Respondent and the .IN Registry. The award shall be passed

within 60 days from the date of commencement of arbitration proceeding. In exceptional

circumstances this period may be extended by the Arbitrator maximum for 30 days. However,

the Arbitrator shall give the reasons in writing for such extension.

Evidence of registration and use of domain name in Bad Faith has to be ascertained by the

Arbitrator taking in to consideration Para 6, INDRP; but without any limitation. These

considerations are analogous to those provided under Para 4(b), UDRP.

The Arbitrator shall ensure that copies of all documents, replies, rejoinders, applications, orders

passed from time to time be forwarded to .IN Registry immediately for its records and for

maintaining the transparency in the proceedings .

The policy provides that no in-person hearings is take place (including hearings by

teleconference, videoconference, and web conference), unless the Arbitrator determines, in his

sole discretion and as an exceptional matter, that such a hearing is necessary for deciding the

Complaint .

The remedies available to a Complainant pursuant to any proceeding before an Arbitrator is

limited to cancellation of the Registrant's domain name or the transfer of the Registrant's domain

name registration to the Complainant. Costs may also be awarded by the Arbitrator .

The INDRP prohibits a Registrant from transferring a disputed domain name registration to

another holder in case an Arbitration proceeding is initiated pursuant to this policy, for a period

of 15 working days ("working day" means any day other than a Saturday, Sunday or publicholiday) after such proceeding is concluded, or, while the dispute is pending, unless the party to

whom the domain name registration is being transferred agrees, in writing, to be bound by the

decision of the court or arbitrator.


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VIII. CASE LAWSCase laws regarding trademarks dispute over Internet Domain Names

1. Princeton Review v. Kaplan10Princeton Review, Inc. ("Princeton Review"), a test preparation service, obtained the domain

name "kaplan.com," which contains the trademark of its commercial rival, Stanley H. Kaplan

Educational Centers, Ltd. ("Kaplan"). In what is believed to be the first ruling on this issue, a

mutually agreed three person arbitration panel recently required Princeton Review to relinquish

the "kaplan.com" domain name to Kaplan.The first key fact is that the panel had to assume that

Internet addresses can in fact act as trademarks. This is not surprising given the true nature of

Internet addresses. Although the name "addresses" conjures up the post office addresses of real-

world places, this is only part of the purpose of Internet addresses.As summarized in the colorful

prose of the McDonald's pirate himself: "Domain names are to the Internet what addresses are to

the Postal Service. They're more than that, really, since your domain name can tell the on-line

world something about who you are. Domain names are kind of like postal addresses, vanity

license plates and billboards, all rolled into one digital enchilada.The second key fact about the

"kaplan.com" case confirms the ability of domain names to serve as trademarks. To quote the

McDonald's pirate again: "If you logged into kaplan.com, you could read a Q&A comparing the

programs offered by [Princeton Review and Kaplan]. Which one do you think came out looking

better?" Internet users, unaware that Princeton Review was the real owner of this address, would

no doubt think that Kaplan was the owner of this address and the source of the information

located there.In short, Princeton Review's registration of the domain name "kaplan.com" very

likely not only produced confusion among Internet users over the source of the information

located at this address, but real damage to Kaplan's goodwill.

1094 Civ. 1604 (MGC) S.D.N.Y., filed March 1994).


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The third important fact is that the President of the Princeton Review, John Katzman, admitted

they had registered the domain name "kaplan.com" "in part just to irritate [Kaplan] . . . Clearly,

we've done that." This equity "unclean hands" aspect of the "kaplan.com" case may be applicable

to many other "domain grabbing" cases likely to arise from the current gold rush. Assuming that

this factor played a role in the panel's decision, they most likely followed traditional trademark

law regarding bad intent. Under traditional trademark law, intent to adopt a mark to derive a

benefit from the reputation of another is one of several factors in evaluating whether the

infringing use is likely to cause confusion in the market.

2. MTV Networks v. Curry11A former MTV video jockey, Adam Curry, registered the Internet domain name "mtv.com"

while working for MTV Networks ("MTVN"). Internet users connected to the "mtv.com"

address could find the posting of "MTV's Top Ten Music List," outtakes from MTV Networks

("MTVN") programming, a printout of the text of a dialog between MTVN characters Beavis

and Butt-head, and a giveaway of MTV-logo T-shirts to subscribers. Promptly after Curry's

departure from MTV Networks, he was sued by MTV Networks for trademark infringement,

among other things, because he refused to stop using the "mtv.com" Internet address. Although

the court only addressed pre-trial motions before the case settled, two significant points may be

gleaned from the court's initial decision.

The first is that Curry never argued that the Internet was exempt from trademark law. Instead,

Curry argued that the domain name "mtv.com" was not going to be used in a confusing

manner. The issue, claimed Curry, was whether MTV Networks has "'some inherent right in

mtv.com.'"

The second important point is the clue provided by theMTV Networks v. Curry court about how

it might rule on the key issue succinctly stated by Curry. In a footnote, the court explains Internet

domain names and analogizes them to "telephone number mnemonics." The analogy is apt

11867 F.Supp 202 (S.D.N.Y. 1994)


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because, as noted above, the Internet domain names are in fact mnemonics for the true, but

unwieldy, initial section of a numerical address.

Although theMTV Networks v. Curry court did not address the scope of trademark protection for

Internet domain names, its telephone number mnemonics analogy suggests a fruitful line of

analysis.

3. Wired v. WIRE

The last case that has arisen recently regarding claims of trademark infringement based on an

Internet domain name found the cutting-edge cyberspace magazine entitled Wired complaining

about the domain name used by WIRE, a computer network devoted to women's issues. Wired

used "wired.com" as its domain name; WIRE used "wire.net." Rather than litigating the issues,

WIRE decided that as a start-up company it could not afford legal wrangling and had to focus on

its business instead. The parties settled with WIRE agreeing to change its name to Women's

Wire and its domain name to "wwire.net." In return, Wired agreed to pay half the cost of the

name change expenses, such as redoing on-line graphics and identity materials.

Although the Wired case never even advanced as far as a cease-and-desist letter, it does illustrate

two interesting issues. The first is that Wired demanded that WIRE change not only its Internet

domain name, but its business name too. Given the fairly close similarity between "wire" and

"wired," requiring WIRE to also change its business name to WOMEN'S WIRE helps to

minimize - in the context in which these Internet addresses are used - any likelihood of

confusion. The second interesting issue is that domain names, for purely technical reasons,

preclude parties from distinguishing themselves by capitalization, stylized formats, or designs.

Companies often use capitalization of letters in their marks as part of the mark itself. WIRE

obviously sought to do this, but was technically precluded from including this additional

information in its domain name. For the same reason, special stylized formats and designs are

also excluded from domain names. As a result, companies will find it even more difficult to keep


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their domain name distinguishable from other domain names because there are fewer ways to

make domain names distinctive.

Indian Cases

The first case in India with regard to cybersquatting was Yahoo Inc. V. Aakash Arora &

Anr.,12where the defendant launched a website nearly identical to the plaintiffs renowned

website and also provided similar services. Here the court ruled in favour of trademark rights of

U.S. based Yahoo. Inc (the Plaintiff) and against the defendant, that had registered itself as

YahooIndia.com. The Court observed, it was an effort to trade on the fame of yahoos

trademark. A domain name registrant does not obtain any legal right to use that particular

domain name simply because he has registered the domain name, he could still be liable for

trademark infringement.

The Bombay High Court in RediffCommunication v. Cyberbooth & Anr13observed that the

value and importance of a domain name is like a corporate asset of a company. In this case the

defendant had registered a domain nameradiff.com which was similar to rediff.com. The court

gave a decision in favour of the plaintiff.

In another case the defendant registered a number of domain names bearing the name Tata. It

was held by the court that domain names are not only addresses but trademarks of companies and

that they are equally important. Tata Sons Ltd v. Monu Kasuri & others 14

In BennettColeman & Co Ltd. v. Steven S Lalwani15 and Bennett Coleman & Co Ltd. v.

LongDistance Telephone Company16 , the arbitration panel gave a decision in favour of the

plaintiff. In this to the respondent had registered domain names www.theeconomictimes.com and

the www.timesofindia.com with network solutions of the United States. These two names are

similar to the names of the Plaintiffs websites www.economictimes.com and

121999 PTC(19) 201

13AIR 2000 Bom. 27,2000(1) RAJ 562(Bom)

142001 PTC 432

15Cases No D2000-0014

162000-0015, WIPO


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www.timesoftimes.com. Another important fact was that the respondents websites using the

domain names in contention redirect the users to a different website www.indiaheadlines.com

which provided India related news.

In Satyam Infoway Ltd. v Sifynet Solutions17

, the Respondent had registered domain names

www.siffynet.com and www.siffynet.net which were similar to the Plaintiffs domain name

www.sifynet.com. Satyam (Plaintiff) had an image in the market and had registered the name

Sifynet and various other names with ICANN and WIPO. The word Sify was first coined by the

plaintiff using elements from its corporate name Satyam Infoway and had a very wide reputation

and goodwill in the market. The Supreme Court held that domain names are business

identifiers, serving to identify and distinguish the business itself or its goods and services and to

specify its corresponding online location. The court also observed that domain name has all the

characteristics of a trademark and an action of Passing off can be found where domain names are

involved. The decision was in favour of the plaintiff.

Google Inc.v.Herit Shah,18

In 2009, Internet software company Google Inc. won a cyber squatting case against an Indian

teenager who had registered a domain name googblog.com. The domain name, Google

contended, was confusingly similar to its trademark. Experts felt that complaints regarding cyber

squatting were on the rise and organizations such as the World Intellectual Property Organization

(WIPO) were being approached by trademark holders to resolve such disputes. On May 15,

2009, the World Intellectual Property Organization (WIPO) ordered an Indian teenager, Herit

Shah (Shah), who had been using the domain name 'googblog.com', to transfer the rights of the

domain to Google Inc. (Google)

In countries like India, where there was an absence of relevant cyber laws to prevent this

practice, such cases were decided within the ambit of trademark laws. Passing off action is where

the defendant is restrained from using the name of the complainant to pass off the goods or

172004 (6) SCC 145

18Case No. D2009-0405


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services to the public as that of the complainant. It is an action to preserve the goodwill of the

complainant and also to safeguard the public. In India cybersquatting cases are decided through

the principle of Passing off. India does not have a law for prohibition of cybersquatting.

Therefore, courts interpret the principle of Passing off with regard to domain names.

IX. CONCLUSIONThe protection of domain name under the Indian legal system is standing on a higher footing as

compared to a simple recognition of right under the UDNDR Policy. The ramification of the

Trademarks Act, 1999 are much wider and capable of conferring the strongest protection to the

domain names in the world.

The need of the present time is to harmoniously apply the principles of the trademark law and the

provisions concerning the domain names. It must be noted that the moment a decision is given

by the Supreme Court and it attains finality, then it becomes binding on all the person or

institutions in India.

It cannot be challenged by showing any statutory provision to the contrary. This is so because

no statutory provision can override a Constitutional provision and in case of a conflict, if any,

the former must give way to the latter. This settled legal position becomes relevant when we

consider the decision of the Supreme Court in Satyam case (supra) in the light of the above

discussion. The various landmark judgments of the Supreme Court have conferred the strongest

protection to the domain names in the world.


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BIBILOGRAPHY

1-Cyber Law by Dr. Sarla Gupta &Beni Prasad Agarwal

EBOOKS:

1- Guide to WIPO domain name dispute resolution By WIPO Arbitration Center

Book ID

http://books.google.co.in/books?id=N0N09-Wj0C&pg=PA9&dq=domain+name+dispute&hl=

ei=1lvToDsI87KrAeA69WYB

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2- Domain name disputes By Robert A. Badgley

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http://books.google.co.in/books?id=nfQUG7mNL7YC&pg=SA5-

PA43&dq=domain+name+dispute&hl=en&ei=1_lvToDsI87KrAeA69WYBw&sa=X&oi=book_

result&ct=result&resnum=2&ved=0CDoQ6AEwAQ#v=onepage&q=domain%20name%20dispu

te&f=false

3- Intellectual Property By Margreth Barrett

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l=en&ei=1_lvToDsI87KrAeA69WYBw&sa=X&oi=book_result&ct=result&resnum=6&ved=0CFAQ6AEwBQ#v=onepage&q=domain%20name%20dispute&f=false

4-Information Technology Law and Practice By Vakul Sharma

Book ID

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&ei=Z_xvTrzgLs3rrQf06e2eBw&sa=X&oi=book_result&ct=result&resnum=3&ved=0CE8Q6A

EwAg#v=onepage&q=trademark%20in%20india&f=false

5-Cyber laws By Yatindra Singh

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+india&hl=en&ei=EfxvTq_tGsbHrQf53tyUBw&sa=X&oi=book_result&ct=result&resnum=1&

sqi=2&ved=0CEEQ6AEwAA#v=onepage&q=domain%20name%20dispute%20in%20india&f=

false
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trademark disputes over domain names

Documents