Domain Dispute in India
Today, domain names can be seen on billboards, TV commercials, and other advertisements, but for those without websites, it is still unclear what exactly a domain name is, what components make it up, and how it is used. We must first comprehend the definition of the word “domain” in order to comprehend domain disputes in India or any other nation.
As per the Oxford dictionary, a Domain Name is a name that identifies a website or group of websites on the internet.
Basically, a domain name is an extension added to a website. The name may contain letters, numbers, or short names. Examples include ‘.com’, which is frequently used for commercial enterprise businesses, ‘.org’, which is used by non-profit organizations, and ‘.net’, which is frequently used by Internet-related organizations. Each nation has a unique code as a domain name; for India, it is ‘.in’, and for Canada, it is ‘.ca’. It is certain that other similar codes are registered for other nations.
Domain names are classified into 3 levels, they are –
A. TopLevel Domains are categorized into the following classes –
- Globaltop-level domain gTLD for example “.org”
- Country Code Top Level Domain Name, (ccTLD) example – .jp (extension isused by the country Japan).
B. SecondLevel Domain
If we take the site – www.google.com – here, www. is a sub-domain name, Google is the second domain name, and .com is the top-level domain name.
In order for a domain name to work properly on the internet, it must be registered with an authorized registrar. Typically, Internet Corporation for Assigned Names and Numbers (ICAAN) is regarded as one of the most reliable service providers for verifying and checking Top Level Domain names in order to prevent duplication or repetition of the names with one another. Once the registration has been completed, it may continue to be used until it expires. It can also be renewed anytime the subscription is due to expire or run out.
Now that we are clear on what a domain name is, let’s examine how a domain name dispute may develop. Most domains are service providers, making a domain name crucial from a commercial standpoint.
If a customer or user wants to utilize a service, they will go directly to the website in question. For this fundamental reason, one’s domain name needs to be distinctive in order to avoid becoming misleadingly similar to another domain name.
India has approximately 4,707,086 registered domains which hold about 0.78%1 of the total world’s registered domains.
A dispute occurs when two domain names are identical or extremely similar to each other, causing users or clients to be sent to the other website (which may be the one that was registered later) or which was created for the purpose of violating or disparaging the first one. When the renewal is not completed in time or if another individual or business purchases the domain name, then it results in a dispute.
In order to provide user-friendly networks, Paul Mockapetris and his colleagues created the Domain Name System (DNS) in the 1980s.
A person had to memorize a different IP address for every page they visited in order to surf the web or visit it. Prior to this development, the DNS alternative was an Internet Protocol (IP) address, which simply contains numerical digits, such as 12.345.6789.00.
Today, IP addresses are still used, but they are disguised with DNS because it is much simpler to remember domain names for websites than IP addresses. When one checks out any website or email ID, the DNS actually translates itself to a unique IP Address, finds the websites, and then displays the results online and on a user’s screen.
Types of Domain Disputes –
Trademarks have the power to protect domain names, and disputes can arise when two domain names are confusingly similar.
I. Cybersquatting –
One such dispute is known as “cybersquatting,” which is the act of registering domain names that are almost identical to those of other domain names with the intention of utilizing them to sell and resell for profit.
Many cybersquatters engage in phishing schemes or work to distribute malware or viruses. Some cybersquatters create websites with the intention of selling counterfeit items to clients. In other cases, they redirect users to websites that provide competitive products or services.
Rediff Communication Limited, the plaintiff in the well-known case of Rediff Communication Limited vs. Cyber booth & others2, Rediff Communication is a company that delivers – News and Information, Enterprise Email Services, and an Online Shopping Marketplace. These services are delivered on PCs, tablets, and a wide range of mobile phone platforms3. In this case, the plaintiffs had asked the Honorable High Court of Bombay for a permanent injunction against the defendants, pleading to prevent them from using the domain name “RADIFF” or any other name that would be confusingly similar to the word “REDIFF.”
Plaintiffs claimed that because of the website RADIFF.com, their customer base is shifting away from their website and toward the website of the defendant.
Additionally, they said that the defendants utilized such misleading tactics to lure customers to their website, proving that it was created with the ulterior motive of exploiting consumers for financial advantage. Additionally, it was challenging for customers to distinguish whether the website was genuine Rediff.com because the services offered by both websites had identical content and functions.
Contrarily, the defendants argued that there was no malice in creating a website with a name that was so similar to the plaintiffs. They noted that their website’s looks and styles are very different and that the word “RADIFF” was created by taking the first three letters of the word “radical,” the fourth letter of which stands for “information,” and the words “future” and “free,” which are represented by the last two Fs of the word.
In contrast, the complete name of the phrase REDIFF is Rediffusion Dentsu Young and Rubicam Advertising Limited. Thus, there are no chances for deception between the two and for customers to become sidetracked as a result of their website.
Bench mentioned that new or first-time users would believe the defendant’s site to be original and due to the similar business services provided by both it is highly unlikely to distinguish between the two websites. The Court observed that the defendants’ arguments have no merit and are insufficient to satisfy the court. As a result, the court decided in the plaintiff’s favor.
I. Cyber Twins –
When two persons or companies contest ownership of the same domain name by claiming to have registered it first or to be the name’s legitimate owners.
Online India Capital Co. Private Ltd. Vs. Dimensions Corporate4 is a lawsuit where the plaintiff was seeking a permanent injunction to stop the defendant from using the website name www.mutualfundindia.com because it is similar to the plaintiff’s website name www.mutualfundsindia.com.
The plaintiff’s side maintained that all of the financial services and information posted on their website was the result of their study and analysis and that they registered their domain name prior to the defendant’s domain name by 7-8 months.
The defendants argued that because the phrases “MUTUAL FUND INDIA” are so general and descriptive in nature, making it common to use on a daily basis as well, it makes no sense to maintain a monopoly on such non-novel or non-unique words. The defendants further proved that their website was registered six years before the plaintiffs. Hence, they cannot keep on checking always who has registered after them with what kind of name.
The plaintiff failed to demonstrate that the name of their website has any secondary meaning, which is a basic requirement to establish in order to obtain
the court’s favour. After weighing the relative strengths of both parties’ arguments, the court concluded that yes, ‘mutual fund India’, these words are descriptive and can be used by many people. As a result, the lawsuit was dismissed.
How Domain Disputes are resolved in India –
In India, domain disputes can be settled in one of two ways:
1. Traditional Litigation –
The Indian judiciary is extremely receptive TO offering legal remedies as applicable to Trademarks under Indian law, which has been beneficial for domain name protection.
Due to the lack of laws specifically addressing domain disputes in India, these matters are handled under the Trademarks Act 1996, where the legitimate owner of the website would be granted passing-off rights against the party whose website is not registered under the Trademark Act 1999.
In the Satyam Infoway Ltd. vs. Sify-net Solutions Pvt. Ltd5 case, the Supreme Court made the following observation: ” 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. 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 website which offers no such services.”
2. Private Arbitration –
India’s INDRP dispute resolution procedure is used for private arbitration.
This.IN Domain Name Dispute Resolution Policy outlines the legal guidelines for resolving disputes that may arise between a domain name registrant and a complainant over the registration and usage of an.IN or. Bharat (Available in all Indian Languages) domain name.
There is a basic rule of procedure set out by INDRP6 that needs to be followed to get a remedy, Firstly Filing is to be done, and the Complainant must notify INDRP that the Registrant has created a confusingly similar website that is being used in bad faith by renting or selling it. If there are any objections, the complaint will be informed within 5 working days and will have 7 working days to correct and modify the objection before the proceeding.
The registry then appoints an arbitrator in line with the 1996 Arbitration and Conciliation Act. As soon as the responders and arbitrator get the document and copy of the complaint, both parties will be informed. The award must be passed mandatorily within 60 days after the start of a procedure. In rare cases, the arbitrator may extend this time for a maximum of 30 days. The arbitrator must provide justification. The harmed party has 90 days to challenge the judgement.
Opinions and Suggestions –
Although the judiciary is supportive of the concept of domain disputes, there are a few drawbacks to traditional litigation in this area. Therefore, it is urgent to create legislation that will cover all domain dispute matters precisely in order to avoid issues of jurisdiction and registration under multiple acts. One significant flaw is jurisdiction; in many situations, one party has foreign jurisdiction and is subject to a separate set of laws, which makes it very challenging to adhere to all of the terms of the agreement.
Another problem is that while courts must follow the correct procedure when dealing with urgent conflicts, most judicial faculty lacks in-depth understanding of this idea because it is extremely technical, necessitating the assistance of legal professionals and lengthening the process.
In today’s digital world, growing a business and advertising it have become the trend. Every second a new website is registered online. In order to protect themselves against trademark infringement, many users who acquire a domain name also register it under trademark regulations. Despite this, domain disputes arise as a result of cybersquatting, hijacking, and cyber twinning; these issues necessitate the government’s and Indian judiciary’s necessary time and attention. IN Policies for dispute settlement act as life savers. Even though India lacks special legislation to address all domain-related concerns, we have made significant progress in comprehending and offering redress to the harmed party.
- https://domainnamestat.com/statistics/overview#:~:text=India-,4%2C756%2C256,-0.84%25 , Last visited on 5th July 2022 at 12:15 am.
- https://www.rediff.com/aboutus.htmlvisited on 5th July 2022 at 11:45
- https://www.registry.in/indrprulesprocedure visited on 6th July 2022 at 1:45 pm.