India being a democratic country is Marching its steps towards the world of digitalization. This era of digitalization has made it agile for people to explore various Places, Customs, beliefs, day-to-day working, ideology and more importantly to perceive and connect to people belonging to distinct communities, countries, creed and philosophy. This surge of digitalization has made work, communication, growth and development very accessible and quick also has helped people to communicate anyone, anywhere and at any time which has helped the country to grow and develop in terms of economy, infrastructure, education, technology and transportation. Digital platform is a prevailing podium for people from different parts of the world to interact, to know and to share their views, customs, philosophy, etc. which has also paved the way for certain immoral practices which hampers the life, reputation and career of the individuals using internet and computer resource. These practices are known as CYBERCRIMES and the individuals or group of individuals engaged in such cybercrimes are known as CYBERCRIMINALS. These cybercriminals use digital platform to bully, troll, harass, abuse, blackmail, commit fraud, stalking, etc., via digital applications like WhatsApp, Snapchat, Instagram, E-mail, Dating apps, and many other applications. These Cybercriminal targets mainly women, children, senior citizens of the country, goodwill of huge organizations, etc. of the country thinking of them as easy targets. Some of Cybercrimes prevailing in the country are Cyber Staking, Morphing, Cyber Defamation, Phishing, Cybersquatting, etc.
Cyber Squatting is “an act of procuring fraudulent registration with an intention to sell the domain name to the lawful owner of the name at a premium” and is a kind of Cybercrime prevailing worldwide. A domain name is undertaken by a company so that they can be undoubtedly acknowledged by its consumers and is contemplated as an online Trademark. Cybersquatting arises when an individual or a company enlist a domain name, and such domain name is identical or similar to a trademark of any other party and maliciously tries to sell the same for a profit. An incredible illustration of such act is that in the year 2015, a former google employee brought a domain name “Google.com” for about a minute for USD12 and gained access to its webmaster tools before Google cancelled the sale and later paid approximately USD 6000 to him. In past decade Numerous times such cybersquatting act were committed for instance registering domain name as “yahooindia.com”, “maxchanzuckerberg.org”, “salmankhan.com”, “amithabhbachan.com”, etc. to gain profit via these domain names. Supreme Court for the first time dealt with Domain name legal protection in the case of Satyam Infoway Ltd vs Sifynet Solutions Pvt Ltd; AIR 2004 SC3540 observed that In India, there is no legislation which explicitly refers to dispute resolution in connection with domain names. domain name is a business identifier in today’s internet driven commercial marketplace and may possess all the characteristics of a trademark. Thus, a domain name may pertain to provision of services within Section 2(Z) of the Trade Marks Act, 1999. 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”.
In the case of Rediff Communication Ltd. vs. Cyberbooth & Anr. 1999, Bombay High Court held that domain names of a company are its most valuable corporate assets and eases communication with the consumer case. Any confusion with name of website may lead to confusion among the consumers and thus cyber-squatter was restrained from using the plaintiff’s domain name.
An illustration of abusive online registration of trademark was noted in the Case of Mr. Arun Jaitley vs. Network Solutions Pvt. Ltd. 2011, Mr. Arun Jaitley the plaintiff, is a prominent public figure. Network Solutions Pvt. Ltd. the cyber-squatter registered the domain name “www.arunjaitley.com”. The plaintiff attempted to purchase the domain name from the cyber-squatter but the cyber-squatter tried to sell at an extreme cost. Delhi High court held defendant guilty for this abusive registration of domain name of a prominent public figure and directed the domain name to be transferred to the plaintiff. The court also held that plaintiff is also entitled to legal costs from the cyber-squatter.
Many a time it is witnessed that the new company’s/ institutions commit such cybercrimes intentionally or unintentionally in order to gain profits from the established domain name and goodwill of the company. But, now a days even the start-ups are falling prey of cybersquatting as they file for registration of domain name but becomes late to register so and thus grow to become prey of cybersquatting. In order to protect themselves from this cybercrimes these start ups can knock the doors of court and can prove their unintentional and timely filed domain name in good faith and with no intention of earning profits from the domain name of established company or organization.
Many countries have enacted several regulations to prevent and punish the happening of such Cybercrimes yet India doesn’t have any specific laws dealing with protection of Domain Name or cybercrimes like Cybersquatting. Even the Information Technology Act,2000 and its 2008 Amendment is silent about the Cybersquatting. Until, any specific law is adopted for such cybercrimes, litigation process can be conducted on the grounds of:
- Trademark Infringement - If the trademark has been registered under Trademarks Act, 1999; then the affected party can file for trademark infringement in court of law. The registration of the mark gives title to the registered owner.
- Passing off – The “passing off” is essentially an action in tort. The legal opinion in India regarding “passing off” has come from N.R. Dongre vs. Whirlpool Corporation, 1996. The Delhi High court observed that a company cannot sell its goods under the pretense that they are goods of another company (Jatana, 1997). In order to determine “passing off” cases, the court applies “likelihood of confusion” test. If it can be established that the domain name owner is trying to confuse the public by using the name of an established trademark, then court can grant an injunction and evict the cyber-squatter. The legal opinion in India regarding “passing off” can be equated to “unfair competition by misrepresentation” in USA (Narayanan, 2017). If a party is successful in obtaining order from a court, then copy of the order could be produced to the registrar of companies. Subsequently, the registrar would transfer the domain name in favor of the successful party.