Internet & Technology

What are Cybersquatting and Its Legal Position in India

Cybersquatting refers to the use, registration or sale of an already existing and well-established domain name and re-selling the same to the lawful owner at a profit. We are all aware that in contemporary times the online presence of business houses has become indispensable. Hence, almost every organization has its own domain name. At present, there are is no effective cyber law that deals with Cybersquatting in India.

What is the Domain name?

In simple words, the domain name is the name of the website. Via domain name, users get access to the website of an organization. For example, www.facebook.com is the domain name of Facebook. Due to high internet usage by users these days, the domain name becomes an integral part of the brand of any company. Therefore, it is necessary that domain name is trademarked by the owner to avoid its misuse.

Types of Cybersquatting

There are many ways in which Cybersquatting may be practiced. However, the most common type of Cybersquatting is Typosquatting, which is done by manipulating the word-formation of the domain name. This way when the users make a typing mistake, they are directed to the substitute (fake) website by the cybersquatter.

Ways in which Typo squatting may be practiced:

• Removing the “dot” from the domain name. For eg: wwwmicrosoft.com
• Misspelled name of the website, like www.microsft.com
• Domain name phrased in a different manner, like microsoft.org

Cybersquatting in the Form of Renewal Snatching

Cybersquatting may also occur in the form of “Renewal Snatching”, which is a practice of registering a specific domain name when the actual owner of the domain fails to renew the registration. Since the registration of the domain names lasts for a certain time period, the owner is required to get the same renewed upon the expiration of the registration. The domain name can be purchased by anybody if it is not re-registered before expiry.

The cybersquatters can purchase a domain name upon the expiry of its registration and then re-sell the same to the original owner at a higher price.

Legal Position of Cybersquatting in India

Till date, India does not have a full-fledged cyber law on domain name protection. The cases are of cybersquatting are dealt under the Trademark Act, 1999.

In the case of Satyam Infoway Ltd v. Sifynet Solutions Pvt Ltd.², it was observed by the Hon’ble Supreme Court 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 Marks Act, 1999 itself is not extraterritorial 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”.

Options available to Victims of Cybersquatting in India

• The trial in a District or High Court
• Arbitration under ICANN’s (Internet Corporation for Assigned Names and Numbers) rules
• Sending of cease-and-desist letters to cyber squatters

Dispute Resolution in cases of Cybersquatting

Disputes pertaining to domain name may be resolved under UDRP (on an international level) or INDRP (national level).

• UDRP

Disputes such as Cybersquatting that involve illegal/ bad- faith registrations of domain names are resolved via the Uniform Domain Name Dispute Resolution Policy (UDRP) process that has been made by the ICANN. As per the guidelines of UDRP in context of Cybersquatting, at the time of registration of a domain name, the applicant gives his agreement to submit to proceedings in case they are initiated under the UDRP of ICANN.

One of the leading ICANN accredited domain name dispute resolution service provider is WIPO, which was established for the protection, distribution, and usage of intellectual property across the world. India is one of the 171-member nations of WIPO.

A complaint may be brought by an individual/organization before the administrative dispute resolution service providers if:

1. A domain name is identical or similar to the trademark in which the complainant has rights

2. The owner of the domain has no direct or legitimate interest in the domain name

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

• INDRP

India has now established its own dispute resolution forum by the name of INRegistry, which is under the authority of National Internet Exchange of India (NIXI). Under this, the domain name disputes are resolved under the.IN Dispute Resolution Policy (INDRP). This policy has been made in consonance with the internationally accepted guidelines and as per the Information Technology Act, 2000.

For resolving the disputes, the procedural rules of INDRP are followed, which contain a detailed explanation on the filing of the complaint, fees payment, mode of communication, and other relevant aspects.

Reliefs available to victims of Cybersquatting in India

There is no specific cyber law in India that deals with the practice of cybersquatting. However, the Indian Courts have dealt with these cases under the Trademarks Act, 1991. Under this Act, two kinds of reliefs are available to the aggrieved:

• The remedy of infringement: This includes civil remedies (such as injunction damages, account profit), criminal remedies (such as the imprisonment of the accused) and administrative remedies (such as a ban on import of infringing copies). This remedy shall be available under the Trademark Act only if the domain name has been registered by the real owner under this Act.
• The remedy of Passing Off: This includes the application of injunction by the real owner for prevention of usage of the domain name by any other individual or entity. If the aggrieved want this relief, no prior registration of the domain name is required.

Need for Stringent Cyber Laws in India

At present, there is an immediate need for clear and stringent cyber laws in India since e-commerce has become the need of the hour for every business. With increasing online business activities, the chances of cyber-crime have also increase manifold. A well-formulated cyber law that resolves the problems of actual owners of domain names is required.

The law should be such that it becomes easy for the aggrieved party to get the compensation for the damages that are suffered due to the registration of the domain name in bad faith. The provisions related to the punishment of the online perpetrators should be included so that online crimes can be reduced.

For any other queries related to Cybersquatting, cyber laws or cyber-crimes, contact us at www.enterslice.com.