CYBERSQUATTING “Someone else could eat fruit of your labour”

In the modern era, the internet and google are alike blood and oxygen, has become the necessity to humankind. It has become a double-edged sword, a boon and threat to business. One of those is cybersquatting. Cybersquatting” means using, registering or trading a domain name with bad faith with the intent of profit from the goodwill of someone else’s trademark. Cyber squatters can severely damage the brand of the Trademark owner by fraudulently register with the intent to sell the domain name to the lawful owner at a premium price.

The practice of cybersquatting originated at a time when most businesses were not aware of commercial opportunities on the internet. Even though now most businesses are about such opportunities, there are bunches of well-known companies that are the prey of cyber squatters.

The disputes related to cybersquatting are on the rise. In the US, the issues related to cybersquatting are dealt with under specific laws. Victims against this menace can sue either in Anti- Cybersquatting Consumer Protection Act (ACPA), which protects trademark right holders from domain name abuses. It allows them to address trademark infringement in court or use an International Arbitration System created by the Internet Corporation of Assigned Names and Numbers (ICANN).

In case of People for the Ethical Treatment of Animals v. Doughney[1], to establish an APCA violation, a bad faith intent to profit from using the parodied domain name must be proven and also that the domain name is identical or confusingly similar to, or dilutive of, the distinctive and famous mark. The court finds that the defendant intended to confuse Internet users into accessing his website. The defendant is not entitled to relief under the safe harbour provision of the ACPA.

In India, unlike the US there is no specific law against abuse of cybersquatting. The Courts in India has connected the Trade Mark Act, 1999 to deal with such cases. Two kinds of relief such as Remedy of Infringement and Remedy of passing off are available under this Act.

The very first case that came up in Indian Courts was Yahoo! Inc. v. Akash Arora and Ors[2] The Court observed that usually the degree of the similarity of the marks is vitally important and significant in an action for passing off for in such a case there is every possibility and likelihood of confusion and deception being caused. When both the domain names are considered, it is clear that the two names being almost identical or similar, there is every possibility of an Internet user being confused in believing that both the domain names belong to one common source and connection, although the two belongs to two different concerns.

With the expansion of the virtual world, it is clear that the exiting Trademark law might not be enough to surmount the issue related to cybersquatting. It is a high time for a strict law in India to deal with this. But at the same time, the owner of a distinctive trade name must take measures before they become prey of Cyber Squatters. The Trademark owner should be aware of the importance of opportunities on the internet so that “no one else could eat their fruit of labour”

[1] 113 F. Supp. 2d 915, 2000 U.S. Dist. LEXIS 13421, 263 F.3d 359 [2] 1999 II AD (Delhi)