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8/14/2019 Cyber Squatting-Group2-LAB.pptx
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Cybersquatting
Abhinav Vyas 13P182
Aditi Rathi 13P187
Archit Arora 13P198Rajesh A Nair 13P227
Sahil Vij 13P233
Sudeep Khare 13P211
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Cybersquatting
Best summarized in Manish Vij v. Indra Chugh, AIR 2002 Del 243,
the court held that an act of obtaining fraudulent registrationwith an intent to sell the domain name to the lawful owner of the
name at a premium
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Categories of Cybersquatting
Typo squatting : Typo squatters rely on the fact that Internet users will
make typographical errors when entering domain names into their webbrowsers.
The omission of the dot in the domain name: wwwexample.com
A common misspelling of the intended site: exemple.comA different top-level domain: example.org
Identity theft : If the owner of a domain name doesntre-registerthe
name with an internet registrar prior to the domainsexpiration date,
then the domain name can be purchased by anybody else after it
expires. This strategy is one of a family of identity theft schemes
including renewal snatching, extension exaggeration and alert
angling.
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Categories of Cybersquatting
Name Jacking
Accomplished by purchasing an individuals name as a top-level
domain name, for example James Jones = JamesJones.com.
Allows the purchaser to capitalize on any searches done for thatname
Use of non-trademarked names and having a purpose other than
selling the domain name back to an individual, allows them to
circumvent the Anti-cybersquatting Consumer Protection Act
(ACPA) laws
Provides low-cost web traffic to the name-jacked website
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Domain Names
A domain name is the human-friendly address of a computer
whereas an IP number is the unique underlying numeric address,such as 192.91.247.53.
Domain name system is administered by the Internet Corporation
for Assigned Names and Numbers (ICANN)
(ICANN) ; an internationally organized, non-profit corporation
that has responsibility for Internet Protocol (IP) address space
allocation, protocol identifier assignment, generic (gTLD) and
country code(ccTLD) Top-Level Domain name systemmanagement, and root server system management functions.
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United States of America
A victim of cyber squatting in the United States has two options:
a. Sue under the provisions of the Anti cyber squatting Consumer Protection Act
(ACPA)
b. Use an international arbitration system created by the Internet Corporation of
Assigned Names and Numbers (ICANN)
Legal Scenario
ICANN implemented dispute resolution mechanism as Uniform Domain Name
Dispute Resolution Policy (UDRP) in 1999, to resolve more than 20,000 disputes
over the rights to domain names.
The UDRP is designed to solve disputes which usually arise when registrant has
registered a domain name identical or confusingly similar to the trademark with no
rights or legitimate interests in the name and has registered and used the domain
name in bad faith.
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The UDRP proceedings are conducted by the ICANN approved service providers.
Each provider follows the UDRP as well as its own supplemental rules.
World Intellectual Property Organization (WIPO)
National Arbitration Forum (NAF)
Asian Domain Name Dispute Resolution Centre (ADNCRC)
Czech Arbitration Court (CAC)
Rule 4 (a) mentions applicable disputes in the events wherein:
1. The domain name is identical or confusingly similar to a trademark or
service mark in which the complainant has rights;
2. There are no rights or legitimate interests in respect of the domain name;
3. The domain name has been registered and is being used in bad faith
Rule 4 (b) explains the evidence of registration and Bad Faith use
URDP Rules
Legal Scenario
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Legal Scenario in India
Concept of a domain name is new to Indian legal thinking
Indias top level domain is .inINRegistryis the official .in registry. INRegisty is operated under the
authority of NIXI (National Internet eXchange of India)
NIXIis a non-profitable company registered under section 25 of the
Indian Companies Act
The disputes relating to .in domain name are resolved in accordance with
the .INDispute Resolution Policy (INDRP) andtheitsRules of Procedure
Section 2(z) of the Trade Marks Act, 1999, defines trademarks as marks
capable of being represented graphically, distinguishing goods or services
of one person from those of others. Mark is defined to include a nameand any abbreviation thereof. The Act has a wide definition for services
extending the ambit in relation to business of any commercial or industrial
activity. The short point which the Court had to decide is whether a
domain name has the characteristics of a trade or service which is
available to potential users of the internet.
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Though domain names are not defined under any Indian law or are
covered under any special enactment, the Courts in India have applied
Trade Marks Act, 1999 to such cases.
Reliefs available :
1. Remedy of infringement2. Remedy of passing off
Remedy of Infringement: Trade mark Act permits
owner of the trade mark to avail the remedy of
infringement only when the trade mark is registered.
Remedy of Passing off: No registration of the trade
mark is required in case the owner intends to avail
the relief under passing off.
Role of Judiciary
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#Yahoo! Inc. Vs Akash Arora
Judgment given by Dr. M.K. Sharma
Plantiff
Yahoo.com had been registered by Yahoo Inc with Network Solution Inc since
1995 and offers a whole range of web based services
The trade mark Yahoo had been registered or was close to being registered in
69 countries.
Yahoo Inc had not registered its domain name in India.
Defendant
Akash Arora started to offer web-based services similar to those offered by
Yahoo.com under the name of Yahoo India.
Whether the act of Akash Arora in registering the domain name Yahoo
India, to offer services similar to those offered by Yahoo Inc, is an
infringement of the trade mark of Yahoo Inc and amounts to passing-
off under the relevant sections of the Trademark and Merchandise
Act?
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The suit has been instituted by the plaintiff against the defendants seeking for a
decree of permanent injunction restraining the defendants, their partners,
servants and agents from operating any business and/or selling, offering for
sale, advertisingand in any manner dealing in any services or goods on theInternet or otherwise under the trademark/domain name 'Yahooindia.Com' or
any other mark/domain name which is identical with or deceptively similar to
the plaintiff's trademark 'Yahoo!' and also for rendition of accounts and
damages.
In Defense : One of the submissions was that the domain name 'Yahoo!' ofthe plaintiff is not used in relations to goods, but, in relations to services and
since services are not included within the ambit of section under Sections
27(2) and 29 of the Trade Mark Merchandise Act and, therefore, the plaintiff
cannot plead for action of passing off in relation to such services.
In support of his submission, the learned counsel drew my attention to theprovisions ofSection 2(5), Sections 27, 29 and Section 30 of the Act and
contended that only goods are recognized for the purpose of preferring an
action for infringement or passing off.
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The Court observed, It was an effort to trade on the fame of yahoos
trademark. A domain name registrant does not obtain any legal right to usethat particular domain name simply because he has registered the domain
name, he could still be liable for trademark infringement.
#Yahoo! Inc. Vs Akash Arora
The Court granted the injunction upon consideration for the relevant law
namely, Section 32 of the Lanham Act.
NOTE :
Mr. Kapil Sibbal, Senior Advocate with Mr. Praveen Anand and Ms BinnyKalra,
Advocates for the Plaintiff.
Mr. Harish Malhotra with Mr. Ashwini Kumar Sood, Advocates for the
Defend-ants
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Suggestions
New legislation
IndependentAdjudicatory Body
Revamping INDRP
Concerted effort by registrars to address and curb it at the
registration level itself by looking into the claim of the person and
doing some back ground check
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Thank you