What is Cybersquatting? How to Avoid Being Affected by Cybersquatting?
Cybersquatting is the terms most frequently used to describe the deliberate bad faith abusive registration of a Domain name and trafficking in with the intent of profiting from the goodwill of a trademark and service mark.
The term is derived from “squatting“, which is the act of occupying an abandoned or unoccupied space or building that the squatter does not own, rent, or otherwise have permission to use.
However, the Cybersquatting is the trade practice of registration an Internet domain used to describe an individuals or company purchase by third parties(Squatters) whose sole intention is to sell it at the premium price.
Here are some tips to prove the cybersquatting in the following condition they are as stated below:
Tips to prove the cybersquatting
1. The Domain name is identical or misleading similar to a trade or service mark in which the complainant has the right to take legal action against the squatters, for example, there are lots of cases Like,
- In Yahoo.Inc V Akash Arora the defendant had registered a domain name yahooindia.com, which was deceptively similar to the domain name of the complainant yahoo.com. The Delhi court passed an injunction order in favor of the complainant.
- In sony corporation v Setec the WIPO arbitration center has held that the domain name registered by the respondent, namely, “newsony.com” is virtually identical and confusingly similar to the domain name of the complainant “sony.com”
2. The holder of the domain name has no right or legitimate interests in respect of the domain name; and
3. The domain has been registered and is being in bad faith.
- An offer to sell rent or otherwise transfer the domain name of the owner of the trade or service mark, or to a competitor of the owner of the trade or services mark, for valuable consideration; or
- An attempt to attracts, for financial gain, internet user to the domain name holders website or other online location, by creating confusion with the trade or service mark of the complainant
- The registration of the domain name 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;
- The registration of the domain name in order to disrupt the business of the competitor.
Note* All of these elements must be established in order for the complainant to prevail.
Thus cybersquatting is the act of registering a popular internet address, such as a company name or the name of a famous individual, with the intent of selling it to the real owner or with a view to preventing the real owner from registering his trademark as a domain name.
How does one identify that the domain name he wants is being used by cybersquatters?
On approaching the domain name if the following result appears then a person has reason to believe that the domain name he wants is being used by a cybersquatter.
- A “can’t find server” message.
- An “ under construction” page, or
- A page that appears to have no relationship to the meaning of the domain name.
Cybersquatting is sometimes referred to as domain squatting and typosquatting.
TYPO – Squatting is basically purchasing a domain name that is a variation of a popular domain name with the expectation that the site will get traffic off of the original site because of a users misspelling of the name. For example, registering the domain name webapedia.com or yahoo.com in the hopes that someone making will get to that site unexpectedly.
Typosquatting is indulged in the people who want to divert traffic to their websites. They do this by slightly changing the spelling of famous websites in the hope that netizens( Internet Citizens) will misspell and come to their sites. It is a lot to like purchasing a domain name that is a variation of a popular domain name with the expectation that some of the traffic for original sites will stray to theirs. This is a dangerous trend because it is indulged in mostly by pornographers. Unsuspecting netizens are tricked into visiting their websites because that’s how they earn their money- by attracting traffic. Such a method can also be detrimental to a company- if prospective customers are diverted to obscene sites they could form an unfavorable opinion about the company.
ICANN ( The Internet Corporation For Assigned Name And Number) Which help and protect from cybersquatters
In the year 1999, ICANN adopted and began implementing the uniform domain Name Dispute resolution policy (UDNDRP), a Policy for resolution of the domain name dispute. This international policy results in an arbitration of the dispute, not litigation.
Dispute involving bad faith registrations are typically resolved using the Uniform Domain Name Dispute Resolution Policy (UDRP) process developed by the ICANN. Under UDRP, WIPO is the leading ICANN accredited domain name dispute resolution service provider and was established as a vehicle for promoting the protection, dissemination, and the use of intellectual property throughout the world. India is one of the 171 states of the world which are members of WIPO.
A person may complain before the administrative dispute resolution service providers listed by ICANN under Rule 4 (a) that:
(i) A domain name is “identical or confusingly similar to a trademark or service mark” in which the complainant has rights; and
(ii) The domain name owner/registrant has no right or legitimate interest in respect of the domain name; and
(iii) A domain name has been registered and is being used in bad faith.
Rule 4 (b) has listed, by way of illustration, the following four circumstances as evidence of the registration and the use of a domain name in bad faith:
(i) Circumstances indicating that the domain name owner/registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark; or to a competitor of that complainant for valuable consideration in excess of its documented out of pocket costs, directly related to the domain name; or
(ii) The domain name owner/registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that it has engaged in a pattern of such conduct; or
(iii) The domain name owner/registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the domain name, the domain name owner/registrant has intentionally attempted to attract, for commercial gain internet users to its web site or other online location by creating a likely hood of confusion with the Complainants mark as to the source, sponsorship, affiliation, or endorsement of the domain name owner/ registrant web site or location or of a product or service on its web site or location.
India has also established its own registry by the name INRegistry under the authority of National Internet Exchange of India (NIXI), wherein the dispute related to the domain name is resolved under the. IN Dispute Resolution Policy (INDRP). The Policy has been formulated in line with internationally accepted guidelines and with the relevant provisions of the Indian Information Technology Act 2000.
Under InRegistry, disputes are resolved under. IN Domain Name Dispute Resolution Policy (INDRP) and INDRP Rules of Procedure. These rules describe how to file a complaint, fees, communications and the procedure involved.
The Internet Corporation for Assigned Names and Numbers (ICANN) is a nonprofit organization charged with overseeing domain name registration. As cybersquatting complaints throttle up worldwide, ICANN has implemented thorough standards of acceptance such that domain name assigning is done with much more scrutiny. ICANN has also put solid requirements for domain name recovery in place for instances of trademark registration lapses by trademark owners. ICANN urges trademark owners to renew their registrations yearly and to report misuse to the agency as soon they become aware that they’ve neglected to register a domain.
Role of Judiciary
Though domain names are not defined under any Indian law or are covered under any special enactment, the Courts in India has applied the Trade Marks Act, 1999 to such cases.
Like in other cases under the Trademarks Act, 1999 two kinds of reliefs are available:
- Remedy of infringement
- The remedy of passing off
The remedy of Infringement: Trademark Act permits the owner of the trademark to avail the remedy of infringement only when the trademark is registered. The remedy of Passing off: No registration of the trademark is required in case the owner needs to avail the relief under passing off.
The first case that came up before the Indian Courts was Yahoo! Inc. v. Akash Arora and Another [1999 II AD (Delhi)]; in which 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 observed that usually, the degree of the similarity of the marks is vitally important and significant in an action for passing off for in such a case there are every possibility and likelihood of confusion and deception being caused. When both the domain names are considered, it is crystal clear that the 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 one common source and connection, although the two belongs to two different concerns.
In Tata Sons Limited and Anr Vs fashion ID Limited (2005) 140 PLR 12; the Hon’ble High Court of Delhi Court held that “The use of the same or 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 (and the erotically limitless) accessibility to users and potential customers and particularly so in areas of specific overlap. 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. Such users could well conclude that the first domain name owner had misrepresented its goods or services through its promotional activities and the first domain owner would thereby lose their customer. It is apparent therefore that a domain name may have all the characteristics of a trademark and could found an action for passing off”
In Dr Reddy’s Laboratories Limited Vs Manu Kosuri and Anr 2001 (58) DRJ241 Hon’ble High Court of Delhi Court held that “It is a settled legal position that when a defendant does business under a name which is sufficiently close to the name under which the plaintiff is trading and that name has acquired a reputation the public at large is likely to be misled that the defendant’s business is the business of the plaintiff or is a branch or department of the plaintiff, the defendant is liable for an action in passing off and it is always not necessary that there must be in existence goods of the plaintiff with which the defendant seeks to confuse his own domain name passing off may occur in cases where the plaintiffs do not, in fact, deal with the offending goods. When the plaintiffs and defendants are engaged in common or overlapping fields of activity, the competition would take place and there are a grave and immense possibility for confusion and deception. The domain name serves the same function as the trademark and is not a mere address or like finding the number of the Internet and, Therefore, the plaintiff is entitled to equal protection as a trademark. The domain name is more than a mere Internet address for it also identifies the Internet site to those who reach it. In an Internet service, a particular Internet site could be reached by anyone anywhere in the world who proposes to visit the said Internet site. In a matter where services rendered through the domain name on the Internet, a very alert vigil is necessary and a strict view needs to be taken for its easy access and reach by anyone from any corner of the world. The trademarks/domain name ‘DR. REDDY’S’ of the plaintiff and ‘drreddyslab.com’ of the defendants are almost similar except for use of the suffix ‘lab.com’ in the defendant’s domain use. The degree of the similarity of the marks usually is vitally important and significant in an action for passing off as in such a case, there are every possibility and likelihood 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”.
In Aqua Minerals Limited Vs Mr Pramod Borse & Anr; AIR2001 Delhi 467 the Hon’ble High Court of Delhi has held that Unless and until a person has a credible Explanation as to why did he choose a particular name for registration as a domain name or for that purpose as a trade name which was already in long and prior existence and had established its goodwill and reputation there is no other inference to be drawn than that the said person wanted to trade in the name of the trade name he had picked up for registration or as a domain name because of its being an established name with widespread reputation and goodwill achieved at huge cost and expenses involved in the advertisement.
In India, there are two important cases of typosquatting: Yahoo Inc v Victor Majewski Polanski Ors and Info Edge India (P) Ltd v Shailesh Gupta………………