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Cyber Squatting in India: A Critical Analysis



Introduction


Cyber security and attacks have been a major issue since the inception of the internet. Cybercrime is a crime where a computer is the main tool to commit an offense. Such crimes have been on a rise and it has doubled up during the pandemic. “It is estimated that one cyber-attack takes place every 39 seconds.”[1] Cybercrimes cost companies and individuals millions of rupees annually. While there are various types of cybercrimes, this article concentrates on understanding cybersquatting and how has it affected the Indian market.



Domain Name & Cybersquatting


Every page on internet has its own address known as Uniform Resource Locator (URL). The domain name is a part of the URL. The domain never changes even if you change your computer or internet services.[2] The Internet Corporation of Assigned Names and Numbers (ICANN) is responsible for the administration of top-level domain names.[3] The whole idea behind having a domain name is to help people remember and recognize names in the cyber world.


Cybersquatting is registration of another’s trademark in a domain name with an ulterior motive. The ulterior motive is to sell such a trademark at a profit or trading the reputation and goodwill of the original party or both. But how do you know if your domain name is used by a cybersquatter? Below are the few ways to find out[4]:-


· Put in the domain name and see if it takes you to a functioning website and if it rather takes you to a site which states “for sale” or “can’t find server”, chances are the domain is used by a cybersquatter. Sometimes the absence of the real website can be because of some technical glitches so always cross check with the owner.

· If the domain is functional but somehow does not relate to your products or services, chances are that there is no issue of cybersquatting but trademark infringement.

· If the domain takes you to a functional website but is full of advertisements for products related to your trademark, you probably are facing a cybersquatter.

It is important that you find out whether an issue of cybersquatting exists by contacting the domain name owner.



Legal Position -India


Due to developed technology, the importance of domain names has increased in India. There are several companies in India who have faced cybersquatting. But unfortunately, India does not have any specific law related to cybersquatting or as a matter of fact, we do not have laws for domain name protection or any provisions under the Information Technology Act, 2000. All issues pertaining to cybersquatting are dealt under the Trade Marks Act, 1999. Now, one can opt for two actions if there is an infringement of a domain name; remedy of infringement when your trade mark is registered, or remedy of passing off where registration of trade mark is not mandatory but there should be some proof which shows that the cybersquatter is passing off his good or services as yours. Below let us discuss a few of the landmark cybersquatting cases and understand how Indian judiciary interprets cybersquatting.


· Yahoo! Inc. v. Akash Arora[5]

This was the first case that was reported in the Indian courts. Defendant launched a website (yahooindia.com) which was almost identical to plaintiff’s website (yahoo.com). Not only that, but the services offered were also similar. The courts ruled in favor of the plaintiff; U.S. based entity and stated that degree of similarity and significance is important while dealing with such identical names and because the websites had similar features, there is a possibility that an individual can be confused in believing that the domain names belong to one source. Thus, the defendant was made liable for trademark infringement.

· Satyam Infoway Ltd v.Sifynet Solutions[6]

The defendant registered domain names (siffynet.com & siffynet.net) which were nearly identical to that of the plaintiffs’ (siftynet.com). Plaintiff had its reputation and goodwill at stake. Plaintiffs’ claimed of introducing the word “Sify” first from its corporate name Satyam Infoway. The Supreme Court held that the domain names were 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 remarked that domain name had all the characteristics of a trademark and an action of Passing off can be found where domain names are involved.[7]

· Tata Sons Limited and Anr v. fashion ID Limited[8]

It was held that that use of nearly identical domain names could result in diversion of clients mistakenly. Ordinary consumers/users seeking to locate the functions available under one domain name may be confused if they accidentally arrived at a different but similar web site which offers no such services.[9] Therefore a domain name may have all the characteristics of a trademark and could found an action for passing off.


· Bennett Coleman & Co Ltd. v. Steven S Lalwani & Bennett Coleman & Co Ltd. v. Long Distance Telephone Company[10]


The respondent registered www.theeconomictimes.com and www.timesofindia.com. These two names were identical to the Plaintiffs’ website. Another important fact was that the respondent’s websites using the domain names in contention redirect the users to a different website http://www.indiaheadlines.com which provided India related news. The decision was made in favor of the plaintiff.



Conclusion


It is evident that cybersquatting has been here for a while now and will be prevailing due to the advanced technology. India is in an urgent need to draft new legislations which specifically deals with the protection and breach of domain names. The abusers are going to devise plans to dupe and extort money from reputed entities and individuals. Because of the lack of a prevailing law, these abusers can go free sometimes. The Trade Marks Act has its own shortcomings and the remedy provided under the Act often fall short. Not only will such laws help genuine Indian brands and strengthen them, but it shall also built a great confidence amongst foreign entities who plan to establish themselves in India. In a long run, stringent laws on protection of intellectual property rights can only afford greater development in India.

[1] AP, “Cyber crimes on the rise during pandemic, says U.N. disarmament chief”, available at https://www. thehindu.com/news/international/cyber-crimes-on-the-rise-during-pandemic-says-un-disarmament-chief/article31658762.ece.

[2] Singh & Associates, “Cyber Squatting Laws in India”, available at https://www.mondaq.com /india/trademark/208840/cyber-squatting-laws-in-india.

[3] Elias Stephen, “Cybersquatting: What It Is and What Can Be Done About It”, available at https://www .nolo.com/legal-encyclopedia/cybersquatting-what-what-can-be-29778.html.

[4] Supra note 2.

[5] Yahoo! Inc. v. Akash Arora, 1999 IIAD Delhi 229.

[6] Satyam Infoway Ltd v.Sifynet Solutions 2004 (6) SCC 145.

[7] Madhavan, Ashwin, “Cybersquatting is a menace which has no boundaries and is similar to terrorism”, available at https://www.indialawjournal.org/archives/volume1/issue_2/article_by_ashwin.html.

[8] Tata Sons Limited and Anr Vs fashion ID Limited 2005 (30) PTC 182 Del.

[9] Ibid.

[10] Supra note 7.


Contributed by: Prachi Shah


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