August 4,2019:
The Author, Vaishali Malhotra”, is a 4th year student of B.A LL.B from Kurukshetra University, Kurukshetra, Haryana. She is currently interning with LatestLaws.com.
I.Introduction
As we know, internet revolution has marked the new age called as "e-age". With the gradual growth in digital and internet media, the online presence of each platform has taken great significance. If we talk about domain name,Domain names now a days are the integral parts of every businesses carrying out any online commercial activity. Day by day the commercial activities on the internet is being increasing, the significance and the purpose of the domain names can't be neglected. Today domain names are not just the names of the websites of different entities or businesses but also act as a business identifiers which plays a very significant role in promotion of the business entity. Some people may refer domain name as a online equivalent of trademark in the intellectual property law .
II.What is domain name?
Basically, domain names are user friendly as well as easy to remember addresses which is used by the internet surfers the allocation of different websites. It act as a identifier for the business entities as business entities uses Domain Name as a tool for the promotion. In technical language, web server requires Domain Name System (DNS) to translate Domain Names into IP addresses as internet is based upon IP addresses. Generally,Domain names are [xyz] followed by .com; .org; .gov; .net; .in; etc.
III.What is Domain Name as an Intellectual Property?
Domain name property refers to the person or companies property regarding the domain name. Specifically, Domain Name Intellectual Property refers to the unique internet addresses which are used to find the websites and also act as a identifier for the business entities.
People Interactive (India) Pvt. Ltd. vs. Vivek Pahwa & Ors
Bombay High Court held that Domain Name is a physical or terrestrial address .It instruct surferers to a particular part of web registrant of the domain name pause and displays the information regarding their businesses and services.
IV.Historical background
After emergence of e-commerce, business entities have started flourishing and expanding their activities on internet. However, a company cannot directly enter the cyber space without an identity. Unique Internet Protocol (IP) addresses were not catchy and difficult to remember due to its all numeric characteristics. This led to the development of Domain Name Systems (DNS). DNS was introduced as a substitute to the all numeric traditional IP address. DNS basically functions to convert complex IP addresses of e-mails and websites into simple domain names for easy access by average user. Domain names are now also referred to as valuable corporate assets carrying goodwill. Some examples of Domain Name-
- .com for commercial
- .int for organizations established by international treaties.
- .net for computers of network providers
V.Domain name and trademark
Domain names can be registered as trademarks upon fulfilling all the conditions that are required to be registered as a trademark.
Hence, any domain name which is unique, capable of identifying itself and distinguishing its goods and services from those of others and acts as a reliable source identifier of concerned goods and services on the internet, may be registered as a trademark.
Satyam Infoway Ltd. vs. Siffynet Solutions
In this case, the question was raised that whether the domain is are recognizable as intellectual property such as trademarks or not. Supreme Court held that “The original role of a domain name was no doubt to provide an address for computers on the internet. But the internet has developed from a mere means of communication to a mode of carrying on commercial activity. With the increase of commercial activity on the internet, a domain name is also used as a business identifier. Therefore, the domain name not only serves as an address for internet communication but also identifies the specific internet site, and distinguishes specific businesses or services of different companies. Consequently, a domain name as an address must, of necessity, be peculiar and unique and where a domain name is used in connection with a business, the value of maintaining an exclusive identity becomes critical. As more and more commercial enterprises trade or advertise their presence on the web, domain names have become more and more valuable and the potential for dispute is high."
VI.Domain name be registered and protected as a trademark
The question arises is that whether the domain name be registered and protected as trademark. The answer is yes, two meanings can be registered and protected under trademark add National as well as international level. As domain names all the terms and conditions act as a Trademark in intellectual property law. Another factor for considering domain name within the ambit of trademarks is that , domain names are the identifier for the business entities likewise trademarks. For the proper treatment of domain name as a trademark, the domain name must be registered under intellectual property law. For that purpose, domain name must be an unambiguously unique from all other existing domain names as well as well known trademark present on the internet to avoid chaos and confusion in the minds of customer.
VII.Registrar and Registrant of Domain name:
Before understanding the registration procedure we need to know that who is the registrar and the registrant of domain name. Basically, a person registering a domain name is called as a registrant of the domain name of the owner of the domain name. On the other hand, the agency or the agent which registered domain name in their registers is known to be the registrar. with resistors. Practically, there are number of agencies available for the registration of domain name which are generally authorized by the governing bodies to register a domain name. The registrar of the domain name to keep track of all the information related to the renewal, address details of the registrant .keep a track of all information like renewal, transfer and address details of the registrant in respect of Domain name.
VIII. Registration procedure
Every company domain names may be registered in any number of "top level domains" called "TLD" or the "generic top level domains" ("gTLDs"), such as .com, .net, .org and .info
The registration of a domain name allows registrant a right of using that Domain Name during a specified period. It provides following rights:
- Right of reservation
- Right of Monitoring
- Eligible for the Disputes Redressal
VIII.Domain name disputes & Infringement of domain name
Cyber squatters often register various domain names containing well-known registered trade marks with the intention of selling these domain names to the rightful trade mark owners for profit earning.Unauthorisation of domain name and non-descriptive registration and usage of a registered trade mark in a domain name or email address amounts to trade mark infringement
Info Edge (India) Pvt. Ltd. vs. Shailesh Gupta and Anr. ,
In this case the website using the domain name " Naukri .com" was held to be confusingly similar to that of the plaintiff, ‘naukri.com’, with a different spelling variant establishing prima facie inference of bad faith.
IX.Settlement of domain name disputes
Domain name disputes increasingly day by day because of the presence of jurisdictional issues within the cyber space. US was the first country to introduce a separate promulgation for trademark infringement in cyberspace which is known to be Anti cybersquatting Infringement Act, 1999. In general, disputes related to Domain Name can be solved in the following manner-
- By ADR mechanism such as Arbitration ,Mediation and Negotiation.
- By conducting Court Proceedings
- By agreement between the parties
- By taking registration as evidence for the disputes redressal procedure.
- Uniform Domain Name Dispute Resolution Policy(UDRP)
In order to settle the disputes related to Domain Names , on August 26, 1999 ICANN came up with the new policy named Uniform Dispute Resolution Policy (UDRP) as a mechanism to settle down the disputes related to domain name.This policy based on recommendations made by WIPO.
- Administration of domain name by WIPO
At global level the administration of domain name by World Intellectual Property(WIPO).
X.Protection of domain name in India
At global level domain names as trademarks or service marks are registered, protected and administered by an organization named ICANN [Internet Corporation for Assigned Names and Numbers] along with the National as well as International protection under the directly concerned National Trademark Law and diverse International Trademark Treaties of the world which applies collectively to numerous nations.
Particularly, in India, domain name as a trademark is protected under the provisions of Trademarks Act, 1999 . This Act provides the proper terms and condition to be fulfilled for the registration of domain name as a Trademark to be protected in intellectual property . The domain name once registered under this act we'll give the registrant sole right as well as legitimate rights over domain name. If in case any person violets domain name which is registered under a valid promulgation will be held liable under Section 29 of the Act.
Bigtree Entertainment v Brain Seed Sportainment,2018
In this case , the Delhi High Court recently denied the plaintiffs, proprietors and owners of the website bookmyshow.com, an interim injunction against the defendant’s for the usage of the domain name- bookmysports.com.Delhi High Court considered the fact that prefix “ BOOKMY ”of the Plaintiff’s trademark “BOOKMYSHOW” was descriptive rather than an arbitrary coupling of words. Plaintiff’s failure to prove that “BOOKMY” has distinctiveness or secondary meaning.Delhi High Court dismissed the application for interim injunction filed by the plaintiffs.
XI.Conclusion
Through reading the above article,it is depicted the need of the present time is to harmoniously apply of the principles of the trademark law and the provisions focusing on the domain names. As use of interent is increasing day by day and is considered as a highly preferred platform for the acceleration of flow of business related information.Under the auspices of ICANN and the WIPO protection of Domain Name as intellectual property is now accessible.There are various ways for the resolutions of grievances between the parties.As per view , protection of Domain Name at a global level could be achieved by the harmonization of trademark laws of individual nations worldwide.
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