Based on the various interpretations, legal experts are trying to arrive at the rights of various parties to a Domain name such as the Registrant, Registrar, the Trade mark owner etc.

Let us  try to explore the nature of the Domain name from the point of view of its functionality. The domain name is an instruction to the browser to point the browser to a "Registry Router" which analyses the name and matches it with a number (IP address) and redirects the data packet to the corresponding computer in the Internet. The computer again resolves the address and tags it to a given file (say in html format) in the sub network. Thus the domain name "transports" the browser to a given address. 

Is it then the "Real Estate" in   the Cyber space? Perhaps not. The server space..the few MB  on the server's hard disk reserved for you is more like the "Real Estate". Domain name is the vehicle which transports you to the real estate.

Is it  a "Trade Mark?". Well this is the hot debate raging in the Cyber space. Before we answer this let us answer this question. If my name is Vijay, is it the same as the name "Vij"? "Vijayan"? or "Vijayashankar?". Obviously no. The addition or deletion of some letters makes the name different. If this is so, obviously  "yahoo.com " and "yahooindia.com" are different names. The concept of trademark arises in the real world where the name written in a specific typo,style,color,size and with or without an accompanying picture is given a certain protection. Just because a company has a trademark right on say the words "Pepsi" written is a specific form or color, it does not mean that the company has the extended right on the type of fonts used or the color used. Similarly if there is a business in the name of "Pepsicon"  or "Epilepsi" or "Slepsi" etc, it is improper to extend the trademark right of Pepsi over other words. Presently the argument of "Confusing similarity" is being extended to ridiculous levels such as in the case of "yoohoo.com" and "Model-E" cases.  WIPO has been unrealistic in extending the trademark rights blindly over all domain names.

Today the link between the trademark name and the domain name goes through various translators. For the computer the domain name is just a set of  ascii characters which it understands as a series of bits and bytes. It is a relationship between the key board strokes and assigned memory spaces in the computer. For the router it is a relationship with the  IP address in the domain name registry.  For the web server it is the relationship with the particular file. At any of these places if the relationship is altered, the domain name would mean something different. The argument that a trademark name which is part of a domain name infringes on the trademark rights is therefore difficult to accept.

Is the "Domain Name" a right?. It is of course a right available to the owner to specify the IP address to which all packets addressed to the domain name to be routed. He can change this if he shifts his "server". It is this right to shift the IP link that acquires the financial value behind the "Domain name". This is an assignable right since the right is transferable. It should also be inheritable unless the contract specifies otherwise. Similarly it should also be garnishable.

The verdict of the Supreme Court of Virginia in the Network Solutions vs. Umbro International Inc appears incorrect atleast by Indian law. Mr Sanjay Bhatia has discussed this elaborately in the article linked below.

While the debate on the nature of Domain name continues, we must recognize that Domain name is a property exclusive to the Cyber society and it may not always be possible to understand its nature with reference to the real life situations only. It is like the laws of Physics in the Newton era which were held to be gospel truths until Einstein suggested that the laws may change if the frame of reference changes. This is the essence of  "Relativity Theory" which says there is nothing like "Absolute Truth". Everything is "Relative". This is relevant to all legal issues in the Cyber space since most of the laws which we are today trying to use as bench marks were drafted when no body new that there could be something like Cyber space. It is only when new laws are made exclusively for Cyber space transactions that we can draft them exclusively to the needs of the Cyber society. Unfortunately this opportunity to "Write Law as is appropriate to the Media" is not being exercised by many countries including India where the ITA-2000 is being handled as an Act that  codifies the existing laws to the extent they are relevant to the Digital media. It would be better if we forget the existing laws and think differently for arriving at laws appropriate to the digital media and the digital society. 

Let's hope  that where the law framers have failed, the judiciary would compensate. The judge sitting on a case has the ability to define an interpretation that is more appropriate to the Cyber society even if they can be interpreted differently in the real world. This can be facilitated by the lawyers who also should start thinking without limiting their thoughts to the existing provisions and interpretations of the real life laws.

Naavi

Related Article in IndiaInfo by Sanjay Bhatia