Sugandha Nagariya, pursuing BLS LL,B. from Government School Law College, Mumbai.
DOMAIN NAME AND THE LAW
Proliferation of internet has led to increase in number of domain name. The Internet has become a very powerful tool, having the ability to provide jobs, shorten product life cycles, shorten international communications barriers, and transcend political and social boundaries. The challenge the law has faced in these years is, how to increase the development of intellectual property on the Internet while preventing its unauthorized use.
There are a number of companies that a consumer wants to connect with, but such is not possible physically. The domain names make it possible by helping the consumer to identify and contact the company. Trademarks and domain names are interrelated which is explained in the latter part of the article.
A domain name holder gets paid by the way of pay-per-click advertising on their website. The only thing that he has to do is sit back and let the money roll in when any of the Internet users click on those advertisements. A domain name holder can earn a lot in a day.
WHAT IS DOMAIN NAME
Domain name represents an INTERNET PROTOCOL (IP). It is the internet equivalent of a telephone number or address. It helps to locate a particular webpage and send emails. Every computer on internet is assigned a unique address called an Internet Protocol Address (IP Address), without which computer would have no idea where to look for a web page and email routers would not be able to send e-mails. IP are set of rules that govern the transmission of information over the internet and thus, each device on internet needs to have a unique IP Address for proper communication. A typical IP address looks like this: 18.104.22.168 – If you type this IP Address in the address bar, you will reach the google.com website.
However, it is very inconvenient to remember such numbers, but it is easier for humans to remember names (google.com is a domain name). This is why Domain Name System (DNS) was developed. Domain names are also used as simple identification labels to identify ownership. Examples of these are the realm identifiers used in the Session Initiation Protocol (SIP), the Domain Keys used to verify DNS domains in e-mail systems, and in many other Uniform Resource Identifiers (URIs).
● PARTS OF DOMAIN
The domain can be split up into two parts:
1. Top Level Domain: The two parts of Domain name are separated by a dot (.), for example in a domain name like google.com the word coming after a dot (.) i.e. “in” is the Top Level Domain. The Top Level Domain can be further classified into two parts:
a) Country code Top Level Domain (ccTLD): Each ccTLD represent a particular country. For example in India the ccTLD is ‘.in’
b) Generic Top Level Domain (gTLD): Each gTLD represents common or generic top level domain such as ‘.net’, ‘.org’, ‘.gov’, etc.
2. Second Level Domain: The second part in the domain name google.com i.e. “Google” is a sub-level or second level domain.
The Top Level Domain together with Second level domain comprises of a Fully qualified domain name (FQDN).
The Internet Corporation for Assigned Names and Numbers (ICANN) is an internationally organized, non-profit corporation that has the responsibility for Internet Protocol (IP) address space allocation, generic (gTLD) and country code (ccTLD) top level domain system management, and root server system management functions.
ICANN was incorporated on September 30, 1998, in the U.S. state of California. Originally headquartered in Marina Del Rey in the same building as the University of Southern California‘s Information Sciences Institute (ISI), its offices are now in the Playa Vista.
ICANN is also responsible for approving the UDRP (Uniform Domain Name Dispute Resolution Policy) which act as an internationally accepted guideline for the resolution of disputes in relation to domain names.
LEGAL STATUS OF DOMAIN NAME IN INDIA
For the first time the supreme court of India in the case of Satyam Infoway v Sifynet Solutions Ltd [(2004) 6 SCC 145] touched upon the subject of domain name protection. In the said case, both the parties were using variations of the mark ‘Sify’. The Supreme Court held that 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 Mark Act, 1999 itself is not extra territorial and may not allow for the adequate protection of domain names in India, this does not mean that domain names are not to be legally protected to the extent possible under the laws relating to passing off. Thus, the Apex court concluded that domain names are protected under the law of passing off as set out in the Trade Mark Act, 1999. The decision in favour of Satyam was based on the findings that domain names may have all the characteristics of trademark, and hence an action for passing off can be founded.
Domain name itself is not a TRADEMARK. A domain name is a word or phrase registered in the domain name registration system and a trademark is a right granted under law, to use a mark in commerce to represent a product.
Whether a word or phrase used in a domain name qualifies for trademark protection is determined under regular trademark law. Trademark law does not protect the use of generic words, such as ‘computer’ etc, thus the domain name ‘computers.com’ will not likely receive protection as a trademark law because it uses a word that is a generic term for a class of products. Therefore trademark law does not allow monopolies over generic terms.
DOMAIN NAME DISPUTES
Domain name disputes often arise when ‘cyber-squatters’ intentionally register a domain names that include a trademarked word, company name, name brand of a product, or even names of film stars.
However, these disputes are not always between a person with a purely speculative reason for registering the domain name and a person with a legislative reason to want a domain name. Sometimes both parties have a legislative use and right to the domain name.
Cybersquatting is a registration of a domain name by someone who lacks a legitimate claim with the intent to:
● Sell the name
● Prevent the trademark holder from, gaining access to the name or,
● To divert traffic.
It is also defined by Delhi High Court in Manish Vij v. Indra Chugh case, “an act of obtaining fraudulent registration with an intent to sell the domain name to the lawful owner of the name at a premium”.
Cyber squatting is when somebody buys a domain name like xyz.com for example with the, sole purpose of selling it back to someone who wants it or really needs it, and thus earning a lot, so it can be a real pain in the neck for small business or just trying to get started with an online presence. Thus, you can try to buy every possible domain name related to your business, but there are literally hundreds and hundreds of these so it isn’t really feasible to buy them all, so you have to make an intelligent choice regarding the same.
There are various laws regarding Cyber squatting like the Anticybersquatting consumer protection act which makes it illegal for a person to register, traffic in, or use the domain name that has bad faith intent, The classic case related to Cyber squatting was the Google.com Vs Groovel.com. Groovel.com was owned by Sri Lankan. In 2007 Google alleged a Cyber squatting suit against Groovel.com and the panel found out that the respondent’s domain name was not confusingly similar to Complainants GOOGLE. Respondent contended that the disputed domain name contain the significant letters R and V which serves to distinguish the sound, appearance, meaning, and connotation of Groovel form complainants GOOGLE mark.
Thus, it is a crime which has no boundaries. Cybersquatters have robbed businesses of their fortune. Looking from the Indian perspective cybersquatting has been prevalent since internet came in India.
Typo-squatting is the registration of a variant of a famous trademark. It is a type of cyber squatting. In typo-squatting attackers usually rely on typos of users while the users type the domain name in the address bar but the APIs register a domain name that looks similar to a legitimate domain name or looks like a common misspelling of a common domain name and use that illegitimate domain name for the purpose of phishing or spreading malware. For example: While typing in google.com many people accidentally type googlw.com as the ‘e’ and ‘w’ keys on the keyboard are next to each other. Thus registering the domain name googlw.com to intercept traffic meant for google.com would be typo-squatting.
The main purpose of typo-squatting is to redirect the traffic to websites controlled by attackers and earn illegitimate revenue from the traffic. Attackers sometimes redirect the traffic domain to a competitor of the legitimate domain for illegitimate purpose, they also try to sell the typo-squatted domain to the legitimate domain owner t a higher price and earn illegitimate revenue.
So, in order to prevent typo-squatting the legitimate domain owner can buy variants of domain name that can be used by the attackers for typo-squatting.
DOMAIN NAME DISPUTES IN INDIA
India’s Top level domain is ‘.in’. The sunrise period for the ‘.in’ domain was from 1st January 2005 to 21st January, 2005. During this period owners of registered Indian trademarks or service marks were given an opportunity to apply for “.in” domain.
INRegistry is the official “.in” registry. INRegistry is operated under the authority of NIXI(National internet eXchange of India) which is non-profit company registered under section 25 of the Indian Companies Act and has been set up to facilitate improved internet services in India.
The INRegistry do the following:
⮚ Maintain the ‘.in’ top level domain.
⮚ Ensuring the operational stability, reliability, and security of ‘.in’
⮚ Implementing government of India policies.
Registrations of domain name are handled by INRegistry specific registrars which are as follows:
● National Informatics Centre is the registrar for gov.in domains
● ERNET is the registrar for res.in and ac.in domains
● Ministry of Defence is the registrar foe mil.in domains.
The disputes arising out of the ‘.in’ domain name are resolved in accordance with the .IN Dispute Resolution Policy(INDRP) and the INDRP rules of procedure which defines:
1. How to file a complaint
2. How to respond to a complaint
3. The fees
4. Communication and
5. Other procedures
The .IN Dispute resolution policies were formulated by .INRegistry and were in lines with internationally accepted guidelines of Uniform Domain Name Dispute Resolution Policy (UNDRP). The “.in domain name dispute resolution” (INDRP) sets out the terms and conditions to resolve a dispute between the Registrar and the Complainant arising out of the registration and use of a “.in” Internet Domain Name. The Registrar is the holder of the .in Internet domain name and the Complainant is the person who has complaint against the Registrar.
Domain names are registered in large numbers, even today most of the internet is working on IPv6 technology which is capable of storing IP Address that are more than sufficient for everyone on this planet and thus ICANN maintains the whole information relating to domain name through WHOIS protocol. Registrant information associated with domain names is maintained in an online database accessible with the WHOIS protocol.
WHOIS is an Internet database that contains information on domain names, which includes the name servers associated with the domain name, the domain registrar, registrant and the domain’s Administrative and Technical contacts, expiration dates etc. By performing a WHOIS search, you can find out information about a domain name holder like when and by whom a domain was registered, their contact information, where the website is hosted, when the domain expires, and more which is contained in WHOIS databases. It is generally used to check the availability or ownership of a domain name.
However, the results of a ‘whois search’ are not of much evidentiary value as anyone can register a domain name using a fake name and address.