With the arrival of Internet, the world is witnessing a new change in the field of communications. Everybody has to do something or the other with the Internet. The term cyber squat may be defined as:
“Cyber squatting occurs when domain names bearing a resemblance to famous trademarks are registered by persons hoping to sell the registration to the corresponding trademark holder. Typically, in such cases, persons who have absolutely nothing to do with the name, virtually pirate the name by obtaining a SLD registration with the .com TLD of a well-known company or brand’’[1]
Most common examples of cyber squatting include the reservation of sites that include the names of celebrities or companies. It guarantees the cyber squatters a profit whenever a celebrity or company decides to set up an official Web site and needs that domain this requires registration of a particular domain name and web site under the domain name system.
Courts on cyber squatting
These practices include the deliberate bad faith registration as domain of well-known trademarks with an intention to sell the domain to the owners of those marks (or rivals owners) or simply to take unfair advantage of the reputation attached to those marks. In technical parlance, this is called cyber squatting. It thus involves the use of domain name by a person with neither trademark registration nor any inherent rights to the name.
Analysis of few cases clearly depicts the trouble generated by cyber squatting:
1. The first reported Indian case is Yahoo! Inc. v. AKASH ARORA[2] wherein the plaintiff, who is the registered owner of the domain name "yahoo.com" succeeded in obtaining an interim order restraining the defendants and agents from dealing in service or goods on the Internet or otherwise under the domain name "yahooindia.com" or any other trademark/ domain name which is deceptively similar to the plaintiff's trademark "Yahoo".
2) In Rediff Communications LTD, v Cyber booth[3] plaintiff, the owner of the well-known portal and domain name rediff.com filled for injunction against the defendant, registrant of the domain name "rediff .com". There was a common field of activity and the judge was satisfied that there was a 'clear intention to deceive' and granted interim relief to the plaintiff. The judge stated, "A domain name is more than an Internet address and is entitled to the equal protection of trademark."
3. In, Titan Industries v Prashant Koorapti & Others the defendant registered the domain name "tanishq.com". The plaintiff Company, which has been using the trade mark "tanishq" with respect to watches manufactured by it, sued for passing off and alleged that the use of the domain name by the defendants would lead to confusion and deception and damages the goodwill and reputation of the plaintiffs. The Delhi High Court has granted an ex-parte ad-interim injunction restraining the defendants for using the name "TANISHQ" on the Internet or otherwise and from committing any other act as is likely to lead to passing off of the business and goods of the defendants as the business and goods of the plaintiff.
4. In Marks & Spencer PLC vs. One in a Million[4] , the High Court of Justice, Chancery Division, enjoined the activities of two cyber dealers and their related companies, who had obtained and were offering for sale or "hire", numerous domain names containing well known marks. In this group of cases, the Court enjoined "the threat of passing of" (a threat which would become a reality if an offending domain name was sold to and used by a stranger to the trademark owner), issuing a warning to cyber squatters:
"Any person who deliberately registers a domain name on account of its similarity to the name, brand name or trademark of an unconnected commercial organization must expect to find himself on the receiving end of an injunction to restrain the threat of passing off, and the injunction will be in terms which will make the domain name commercially useless to the dealer”[5]
Conclusion
In India due to the absence of requisite cyber laws to prevent cyber squatting, the cases involving cyber squatting is decided under the relevant provision of trademark laws. In UK, if someone has registered a domain name incorporating a trademark, then the domain name holder could be in breach of that states “a person infringes a registered trademark if he uses identical or similar to the registered trademark in relation to identical or similar goods or services".[6]
It can be now said that the question whether cyber squatting would amount to either a trademark infringement or a passing off is a difficult one to answer. The need of the hour is therefore for the legislature to catch up with the technical developments and pass a separate law prohibiting cyber squatting or any other malafide registration of a domain name.
Hence, it is up to legislature to decide the fortune of cyber squatting and take speedy action to curb this virus embraced crime, otherwise what the result will be nobody, even cyber law experts don’t know.
[1] Menhard- Francha Roffe, “Internet Issues: Pirates- Censors- and Cybersquatt”.
[2] 1999 PTC (19) 201 (Delhi)
[3] 2000 AIR(Bom) 27)
[4] CH 1997 M.5403
[5] Ibid
[6] Section 10 of the Trademark Act, 1994
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