| . | It appears that NASSCOM has made a recommendation to Ministry of Information and Technology to bring about some more regulations on the Copyright and Trademarks applicable to Internet. Inter-alia this may try to bring some legislation to prevent what is popularly called “Cyber Squatting”. There is no doubt that “Cyber Squatting” is the most contentious issue in Cyber law area through out the world. Even Credit card frauds are not discussed with as much fervor as Domain name disputes and Cyber squatting. Already in India, several cases have come up in the Courts to discuss the “Right over a Domain Name”. The Rediff.com’ s right over radiff.com and Yahoo.com’s right over yahooindia.com have already been decided in the high courts of Mumbai and Delhi. WIPO ruled against an Indian holding the domain name of indiainfospace.com giving the right to the holder of infospace.com, in a case which went uncontested. ICICI, ILF&S and LIC went to court but did not pursue the legal option regarding the domain disputes involving jeevanbhima.com, investsmart.com etc. Internationally, yahoo has been in the forefront of evicting cyber squatters including holders of names such as yoohoo.com. Amazon which ran into a dispute with a small timer bought over the rights for a price. Ford had an abortive attack at model-E.com in an attempt to extend its right over its brand Model-T. Very recently singer Madonna could convince WIPO that the hospital site, madonna.com has no right to exist. In the light of the above disputes, it is essential for Netizens to watch what kind of regulation is being talked about in India. Knowing the penchant of our regulators, they will be too happy to pass legislation creating another power-base to decide who should own what. This may be a great opportunity for the regulators to introduce a “Licensing procedure for Domain Name Registrations by Indian Citizens or Residents.” I would like to take this opportunity to place a contrarian view to the issue of Cyber Squatting and Domain name disputes for debate. The emerging consensus in the field is that when a person registers a domain name without any intention of using it and attempts to sell it for a price, the act of registration is considered “Cyber Squatting”. On the other hand, even if the site is in legitimate use, If the name happens to be a registered trademark, the Dispute Resolution Policy of Network solutions as well as the WIPO is in favour of evicting the “Non Trademark owner” from the domain name. However this approach seems to be shortsighted and not practical. The difficulty arises since, if “Trademarks” determine the corresponding Domain Name rights without any dispute, any one “Registered Trademark” can immobilize hundreds of domain names as extensions, with prefixes and suffixes and hundreds of TLD s. Also, similar or confusingly similar registered trademarks are already in existence in different countries . Dealing with the rights of all of them on the Internet in a fair manner would not be easy. I am sure that much before Amazon started its online bookstore, there were hundreds of Amazon brands in Brazil. It would be practically impossible to avoid disputes atleast in the 20 million domain names already registered. Without prejudice to the legal and judicial opinion on the subject, I would like to ask “Whether the right on the Cyber World was in contemplation when the Trademark authorities granted registration under the erstwhile Trademark legislation in the non Cyber Society?”. “Is it not an afterthought?” . If the Internet media was not at all in contention in the legislation, is it fair to impute new meanings to the legislation not contemplated by the society at that point of time and in prejudice to the interests of a “Domain Name Registrant” who registered a Domain name on the prevailing law of “First come first served registration” ? The cardinal principle to determine Cyber squatting should not therefore be either that a person is not using a domain name or that he is willing to sell it. It should neither be that some body has a registered trademark in some part of the world. Cyber squatting is when a person is trying to “pass off” his product in bad faith. Will the Indian law keep this flexibility? Or will it blindly say, “ No body other than the Registered Trademark owner has a right to register any domain name which is similar or confusingly similar to such a trademark owner. If he does so, such person may be fined upto Rs 100 lakhs or imprisoned upto 5 years etc etc.?” I would like to call upon the Cyber intellectuals to think with an open mind whether the existing popular thinking on Cyber Squatting is flawed and needs an International level debate. I wish that the MIT doesnot jump into making a law in this regard without a long debate on the subject. naavi.org not only believes that the present thinking giving undisputed primacy to registered trademarks over domain names is impractical, unjust and unnecessary. Cyber Property owners may watch for a “Solution” for this problem which will be shortly launched by naavi.org. before dismissing this contrarian view. In the meantime comments and criticisms on the above view are welcome. Naavi |
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