AN ANALYSIS OF DOMAIN NAME SYSTEM AND DISPUTES INVOLVED

By

Pankaj Kumar

Introduction

Just a few years ago was born "a concept called Internet 'multiplied so fast now highlighted with different products in relation to almost all areas of the economy. He entered the business world, so that gave rise to new policies, laws, agencies, government etc., new profession, society, the media and many other things. Pointing to the negative side of this evolution, we can see the problems standing side by side of this development. It gave space to a separate branch of crime known as' cyber crime. " There is another serious problem for which most countries are not yet ripe to cope. This problem is known as "domain name disputes. This aspect of the intellectual property law is currently under the trademark laws of many countries, and secondly World Intellectual Property Organisation (WIPO) and the Corporation Assigned Names and Numbers (ICANN) have also developed some policies to resolve these disputes. Today the struggle for domain names not only affecting the rights of the holder but also affects the business cycle of the world.

WHAT ARE DOMAIN NAMES?

The Internet has created a global society in which intangibles have been allocated houses for the main door is tangible, known as "computers". The term 'management' of this society has been replaced by the term "Uniform Resource Locator (URL). The representations of this URL are known as domain names. The teams are identified by the help of a unique number known as the Internet Protocol (IP). Since these numbers are difficult to remember, is represented by special names that we call the domain name. For example, ww.lawspace.com

In a technical sense, domain name group consists of alphanumeric characters separated by periods. The first part is "www" is the indicator of the World Wide Web. The second part is usually contains the company name, trademark, trade name or some time the names of person who is known as domain name of second level. It is associated with a third known as names of top level domain. This domain name top level identifies the nature or location of the organization. These top-level domains are classified into two or more types gTLD generic-level domain names, which is the indicator of the nature of the organization and the ccTLD or country code top level domain names, which indicates the location of the organizations.

DOMAIN NAME MARKET

The market for these intangible assets is one of the smaller markets and higher growth in the world. The basis of this market is all the search keywords is about both generic and descriptive. With online advertising spending is growing 30 percent a year, because domain names has become a business itself same. Entrepreneurs can flip them, like Miami Condos, or can sit on them and collect rent. Today, many brokers are domain names available throughout the world selling domain names through auction sales with specific procedures. Some brokers are selling domain cum mart, e-bay, domain tools, etc. Today people are buying lots of domain names as a marketing tool, not as a brand name for its website.

The latest big deal of the domain name was for seniors.com direction "that took place 15 days ago in the domain name auction, organized by Monikers.com in New York. The bidding began at $ 300,000 and blasted through the seven-digit mark at $ 1.8 million.

Some of the biggest names sales domain as described in the following sequence:

Serial no.

Domain Name

Amount

Seller

Buyer

1

Sex.com

$ 12,000,000

Garry Kremen

Escom LLC

2.

Porn.com

$ 9,500,000

Moniker.com

MXN

3.

Business.com

$ 7,500,000

–

ECompanies

4.

Diamond.com

One million $ 7.5

Odimo

Ice.com

5.

Beer.com

$ 7,000,000

Bill Fisher

Interbrew

Source India-Times, dated-03 July 2007.

Domain names and brands.

In a landmark decision of the Delhi High Court on the case of Yahoo, Hon'ble Justice Dr. MK Sharma, citing the case of Cardservice International Inc. v. McGee, stated that "the domain name serves the same function as the brand and not a single direction and therefore entitled to equal protection as a trademark." In countries around the world domain names have been treated as a kind of trademark. As far as India is considered, all disputes relating to domain names is governed by the Trade Marks Act 1999. In India, to date no single court has tried to domain names as a separate entity from the brand. Several questions arose regarding to the jurisdiction of the court to deal with cases where the domain name has been registered outside India since the law simply mark India alone. Honorable Justice in Yahoo case itself, citing the case of NR Dongre Vs Whirlpool Corp, made clear this confusion, where WHIRLPOOL, although a dictionary word and not recorded in India as a mark is entitled to protection as its reputation had traveled to India border.

In a recent case of Satyam Infoway Solutions Pvt Ltd. Sifynet Vs. Ltd, the apex court gave the opinion pending the confusion about the relationship between domain names and trademarks. The issue of principle involved in this case appeal is whether the Internet domain names are subject to legal standards applicable to other IP as a trademark?

Explaining the principle of domain name the Honourable Supreme Court opined that "with increased commercial activity on the Internet, a domain name is also used as a business identifier. Therefore the domain name not only serves as the address for Internet communication, but also identifies the specific Internet site. In commercial terms, each domain name owner provides information and services associated with that domain name. Thus, the domain name may belong to the provision services within the meaning of Section 2 (z) of the Trademark Law. "Besides these, there are various authorities that talks about domain names and brand as the belongings of the same family.

But aside from the similarities, the Honorable Court has also noted several differences between you, but even then it is not relevant to the nature of the right of an owner in relation to domain names, but it is important for the scope of the protection available to the right. The distinction lies in the way they operate both. A trademark is protected by the laws of the country in which it is registered. Consequently, a brand can have multiple records in many countries. Moreover, since the Internet allows access without any geographical limitation, a domain name is potentially accessible regardless of geographic location of the consumer. The result of this potential is that national legislation was insufficient to adequately protect a name domain. This gap has been made by bodies such as the WIPO Internet and ICANN, and subsequently a Domain Name Dispute Resolution Policy has been framed and is applicable to all member countries of the world.

What are the domain name and why disputes arise?

The original function of a domain name was no doubt to provide an address for computers on the Internet. But the Internet has evolved from a simple means of communication to a mode of conducting business. With the increase in commercial activity on the Internet, a domain name is also used as an identifier commercial. Therefore, the domain name not only serves as the address for Internet communication but also the specific Internet site. In the area business, each owner of domain names provides information and services that are associated with that domain name. Also as discussed in the previous paragraph in connection with the domain name market, you can analyze how professional the domain name system has become. To gather wealth, the illegal activities related to the domain name took birth that spawned several disputes. Concepts such as cybersquatting, typo squatting, meta-tags, etc are added in the dictionary.

Cyber squatting

It is the practice of registering well-known brand names, names of companies, celebrities or trademark as a domain name for various purposes. The goal may be to attract consumers to use their products and services or the abuse of trademarks or names social holder or in particular to take an opportunity to sell the domain names at a price much higher than the amount required for registration. Cyber Squatters cause great difficulties to the original holder of reputation. Violate First come, first served basis "of the domain name registration and operation of the connection between the natural domain name and brand. The first cyber squatting case arose in 1994 and then itself multiplied so rapidly that made international agencies to develop separate policies for it. The courts of the countries like India, USA etc. found that the offer to sell the domain name holder of an identical mark or similar was a trademark infringement.

Illustration: A major case involving cyber squatters, Panavision Int'l v. Toppen, where Dennis was Toppen cyber-squatter who have registered hundreds of domain names with other well known brands with the declared intention of selling or licensing the real owners. Toppen registered the domain name "panavision.com" and offered to sell Inr Panavision for $ 13,000. The corporation, which owned a record PANAVISION federal trademark, sued for violation Toppen TM and dilution in the Federal Dilution Act of 1995 TM. Court of Justice in favor of Panavision.

U.S. have introduced a 'Anti Cybersquatting Act in 1999 to punish cybersquatters.

Typo squatting

It is also similar to the cyber-squatting, but the only difference that in this there is no direct infringement of the rights but does so indirectly. Typo squatting also known as URL hijacking, is a form of cybersquatting which relies on mistakes such as typographical errors made by Internet users when inputting a website address in a web browser. Internet users may accidentally enter an incorrect website address, and can become an alternative address owned by a squatter.

In general, the site will be a victim of typosquatting website frequently visited. The URL is usually typosquatter any of the four types, all similar to the site's address to the victims, for example:

For the website aims to "lawspace.com" a typosquatter can use:

• A common misspelling of the site intended lawspaces.com —-
• A misspelling based on errors ———– lawspac.com fingering
• A different domain name phrased spacelaw.com ——
• A different top-level domain ————————- lawspace.co.in

Sometimes the typosquatters used false addresses to distribute viruses, adware, spyware or other malware. Some are also shock sites. More common are benign domain parking sites, selling advertising to companies on the basis of words similar to the misspelled word written in the domain.

Once at the site of typosquatter, the user can be tricked into thinking that they are indeed on the actual site, through to copy or use similar logos, website design or content. In general, the victim site competitors do.

John Zuccarini, who redirected domains targeting children to pornographic websites, infamously used this tactic.

The victim can take the following steps to move away from the problem:

1. A website usually victim sent a letter to the offender at first, in an attempt to quell the activity.
2. Also may try to buy the website address of the typosquatter, which could have been the target of the typosquatter of all time.
3. A company may try to anticipate typosquatting by obtaining a number of websites with common misspellings and redirect to the main website, written correctly. For example www.gooogle.com, www.goolge.com, www.gogle.com www.gewgle.com, and others, all redirected to www.google.com.

Microsoft has released new software to help to combat this problem. The software is called "Strider Typo-Patrol." This is a tool that analyzes and displays the third domain that is allegedly typosquatter. It also allows parents to restrict access to typo-squatting domains that display advertisements based on sexual orientation in typos web sites for children.

Typosquatting and the law

In the very rare case of people go to law suits. "Typosquatting" is a term without sense in relation to the law. The laws usually are not concerned by the registration of domain names that are similar to other domain names or similar to existing brands, unless some other factor is involved.

Bonafide / competing with non-use.

In many cases we can see that despite TM is the same but there is no claim of infringement. For example, the prestige of the term is used by the kitchens of prestige, prestige meridian, and many other industries and organizations. But as far as the domain name is considered, only one organization can have prestige.com. So it comes as part of the legitimate right cases. Even if some of the organization gets the domain name 'prestige.com' registered, do not represent a violation of the MT. In such cases, the court stressed that the U.S. mere registration of the domain name that is no bad faith intent to sell or block the use of the TM holder itself is so not enough for commercial use. It has argued that the mere registration or activation domain name is not a commercial use, even if the domain name includes the '. com designation. "

Solution domain dispute

There are many international agencies are playing an active role in development of appropriate methods of resolving conflicts relating to domain names and trademark violations. The technological world is connected through e-mails, mobile phones, internet, satellites, etc. In today's world of intellectual property is an integral part of the economy and intellectual property assets are globalize and harmonized. So to maintain harmony, international agencies are obliged to be active in the item.

WTO Paper – The momentum behind the brand of harmonization of world trade is the World Trade Organization (WTO) TRIPS (Trade Related Property Intellectual), the 1994 Agreement, effective January 1, 1995. TRIPS is derived from the General Agreement on Tariffs and Trade (GATT), which sets the nation most favored (non-discrimination) principle. GATT and the WTO view of trademark counterfeiting and intellectual property irregularities and distortions of legitimate trade. His solution, therefore, involves addressing the issues "trade-related intellectual property ownership" of maintaining a " field. "Consequently, the WTO is looking for ways to combat counterfeiting around the world and raise standards of property protection intellectual.

Art. 16 of the WTO TRIPS Agreement extends the protection of well-known brands' products or services which are not similar to those for which a trademark is registered, provided that the use of that mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the mark registered and provided that the interests of the owner of the trademark is likely to be damage caused by such use. "

The role of WIPO and ICANN: Although the area of intellectual property disputes is a semi-researched one hand, it is continuously made in this regard.

Because cyberspace has its limits as is the requirement of the UNCITRAL Model Law to address the issues, and arbitration is being seen as a more appropriate settlement of disputes in this field. WIPO arbitrator acts as the main supplier, along with others. WIPO also has its arbitration rules to provide The UNCITRAL Model Law, although the requirements differ from the Arbitration and Conciliation, 1996. Under this law, sole arbitrator is appointed by each party and the third arbitrator shall be appointed by consensus of the two arbitrators selected. The arbitrator selected must be fully trained in all aspects of intellectual property laws. The WIPO offers a huge database of 1000 independent arbitrators and mediators from 70 countries. Apart from the mediation and arbitration, WIPO also provides a expedited arbitration procedure may be called as an advance on arbitration. Conducts arbitration at short notice and with little cost.

Recognizing the problems raised by the clash between the system of domain names and trademarks, Arbitration and Mediation Center is developing an Internet-based system online for the management of commercial disputes involving intellectual property.

With the approval of WIPO, NABCI has announced plans to use an arbitration panel to resolve disputes over the ownership of domain names before coming to court cases. WIPO established their own arbitration panel to handle internal such international conflicts. National Arbitration Forum as an outside source also preferred to resolve cybersquatting disputes.

A control and resolve disputes has made WIPO Domain Name Dispute Resolution Policy (UDRP) adopted by NABCI 1999.

Uniform Domain Name Dispute Resolution Policy

The outcome of the consultation between ICANN and WIPO has led to the creation not only a system for registering domain names with accredited registrars, but also the evolution of the Uniform Dispute Resolution Domain Name Policy (UDNDR Policy or UDRP) by ICANN.

This policy has been approved by ICANN on August 26, 1999 and was approved 24 October 1999. . While registration of such records can not have the same effect as registration under the Trade Marks Act 1999, however, evidence that at least recognized user of a mark. This policy establishes the terms and conditions in relation to disputes between the parties on the registration and use of a domain name Internet registration for a party.

"The UDRP arbitration created a cyber streamlined" procedure to quickly resolve names Domain ownership disputes involving trademarks. "While the UDRP use arbitration as an ADR process, but the arbitration process is not equal that of a regular arbitration. This has also been called to be the online dispute resolution (ODR) for some of the writers. Arbitration is conducted solely online and physical presence is not necessary.

While the system has been both severely criticized and praised, it is clear that the UDRP has been very reliable. To date around 10,000 decisions, resolution of about 13,500 domain names have been published.

Meeting the targets originally intended, The UDRP has successfully provided an easy, fast and affordable dispute resolution domain name. The procedure, which is completely online, costs about $ 1,000 and is – in most decisions – concluded within 45 days. At the same time, the policy area is limited to cases of "cybersquatting" or the 'hacking'.

The UDRP is a mandatory procedure, applicable to all registrants of generic top level domain names (gTLDs). Any trademark owner who believes that their rights are infringed mark by a domain name registration may initiate a complaint to an arbitrator providers accredited by ICANN: Domain Name Dispute Resolution Center Asia; (National Arbitration Forum NAF), or the World Intellectual Property Organization (WIPO).

Each provider determines the cost of charging based on their supplementary rules, the number of experts and the number of domain names listed in the dispute. Rates vary roughly from $ 1,250 to a dispute with one panel and a unique domain name for $ 6,000 by a dispute over a panel of three members and more than five domain names.

Paragraph 2 of this policy requires the order of the parties that the registration of the domain name will not infringe or violate the rights of third parties and registration is not for illegal purposes and Domain name not be used in violation of any law or regulation. This puts the onus on the party to determine whether your domain name registration infringes or violates anyone's rights.

Under paragraph 4, this policy establishes a mandatory administrative proceeding to litigation only where the plaintiff shows that:

1. Domain name is identical and confusingly similar to a MT or service mark in which the complainant has rights.
2. The person has no rights or legitimate interests in respect of the domain name and
3. When domain names were registered and are being used in bad faith.

The circumstances are considered in bad faith has been defined in paragraph 4 (b) of this policy, including cybersquatting commercial and alteration of the competence to carry out its business.

The author includes the possibility to opt for a single member or a panel of three members. Each panel acts as the definitive factor in deciding the case. On the other hand, if the applicant opts for a single-member panel, the domain name holder (the defendant) has the option to ignore the decision and opting, instead, that the dispute heard by a panel of three members.

The defendant has twenty days ticket deadline to respond to the complaint filed by the brand owner and file a written response to the Provider. If the defendant does not file a timely response, control is almost certainly determine the action based solely on the applicant's arguments.

Awards

In contrast to earn a name dispute domain in the courts, where the successful party may be the beneficiary of a monetary award, the only award that the UDRP is able to offer is the cancellation or transfer of the domain name and therefore changing the domain registration only when the requirement of paragraph 3 of the policy is met. In this case, only the complainant, the party has the power to initiate a UDRP action, receives an award for the victory. If the domain name holder is successful, he receives nothing and domain name registration remains in its initial state. There is no provision for any costs or damages payable to the winning party by the losing party.

The non-binding decisions of the UDRP

Paragraph 4 (k) policy is very clear in the description of the binding nature of decisions.

Undoubtedly, the most significant difference between the Policy Uniform and arbitration procedure typically the UDRP are subject to a review in the courts. By contrast no procedure arbitration is subject to further consideration, since, unless exceptional circumstances require it, calls for the purpose of arbitration awards. This point was very well explained in the v. Netlearning Parisi, Inc. case.

In that case, Dan Parisi registered the domain name "netlearning.com" with Network Solutions Inc. (NSI), an ICANN accredited registrar. Netlearning, Inc. began administrative proceedings against Parisi challenging this record. The three-member panel who was appointed to resolve the dispute voted two to one for Netlearning. The three-member panel directed NSI to transfer the registration of "Netlearning.com" to Netlearning. Parisi filed a declaratory action seeking a declaration that his registration and use of the disputed domain name was lawful. Netlearning moved to dismiss the argument that the movement Parisi was in effect a motion to vacate an arbitration award and that Parisi failed to demonstrate grounds for such action recognizable under the Federal Arbitration Act (FAA) and the New York Convention. The court, by Judge Brinkema denied the motion to dismiss Netlearning.

Even if the panel decides that the domain name must be transferred or terminated, ICANN will provide the defendant the discretion to provide documentation of your home formal proceedings against the complainant within ten days. If the holder of the domain name to successfully meet this requirement, ICANN's decision will remain of the UDRP panel pending resolution of the court. For ICANN not to enforce the decision and follow the court's decision has received evidence that:

• The parties resolved the dispute;
• The suit was dismissed, or
• The court has determined that the holder domain name no longer has the right to use the domain name.

The fact that the Uniform Dispute Resolution Domain Name is not binding may be related to the fact that the official text of the UDRP is not referring to "arbitration" but a "procedure mandatory administrative "but without further clarification. Although this may be nothing more than a semantic difference, most possibly the difference is more important. The idea is that the UDRP drafters understood that the conventional process is not what is commonly defined as "arbitration" decided dress with the term "mandatory administrative proceeding."

Advantage

• Alternative resolution processes – discovery procedures, tests or jury.
• Many domain name registrations in the United States and other countries to participate in politics
• In many cases, provides faster results – 60 to 120 days of its submission to the decision, the panel having14 days to issue a decision once it has been designated.
• It is typically less expensive than filing a lawsuit.
• It is a more streamlined process
• Jurisdiction is not required – All you register a domain name in the gTLD or ccTLD is subject to arbitration case
• Panels usually consist of lawyers and judges knowledge in the field

Disadvantages

• There is no right to a series of answers or responses unless the information specifically requested by the arbitration panel.
• The registrant may continue to use the domain name during the proceedings UDRP.
• The only remedy available to the applicant is the transfer or cancellation of a domain name – no right to damages, injunctions or attorneys' fees.
• The only remedy available to a defendant in case of loss is bringing a new trial in the court – no appeal is available.
• The panels are given a wide discretion on the admissibility of evidence.

Conclusion

Seeing all these developments within a small, an analogy can be drawn about the evolution of intellectuals in this world. This systematic procedure has led to the settlement of thousands of disputes in a quick time. This shows a positive sign towards the development of this branch. But although there are areas that remain vague and are the root of the confusion. In general most of the confusion arises regarding the conflict between the UDRP arbitration panel decision and the decision of national courts in the core subjects. The courts are still in dilemma about the situation in which both the court is contrary view. The reason principle behind this confusion is the rule of one man over the cyber world. So in this situation, the need to bifurcate the required power of adjudication. The process is currently going in India and China develop their own root domain name in order to have control over disputes and policy making concerning domain name disputes in accordance with national laws. But this process is receiving some opposition from the superpowers. Thus, a solution amicable settlement of this matter is much needed for further harmonization in the process of resolving domain name disputes.

About the Author

I am a law graduate, completed my B.A LL.B from Bangalore Institute of Legal Studies, Bangalore. My majors are intellectual property laws, corporate compliances and investment laws.

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