November 25, 2020

Role of Arbitration in Resolving Domain Name Disputes: Position in India

In the current web driven commercial centre, trademark has risen as the crucial instrument of web based business. In the commercial centre, trademark proprietors have selected rights over their products or administrations that permit them to recognize from their contenders. Companies are progressively looking for to influence the notoriety of their trademarks to the online world. This is done with the help of the Domain Name System (DNS). DNS provides recognizable names to numerically addressed internet resources. Every PC on the web has one of a kind numerical address asset, called Internet Protocol (IP) address. These IP addresses are hard to keep in mind. DNS makes it simple to remember sites of obscure IP addresses. So, of remembering 207.151.159.3, it is easier to remember www. your-company -name.net. Also, domain names are increasingly used as business identifiers in internet driven marketplace. They have a critical sway on the web brand building, publicizing, search motor streamlining etc.

According to Black law’s word reference Domain Name alludes to the words and characters that site proprietors assign for their enrolled web addresses. The Internet Corporation for Assigned Names and Numbers (ICANN) deals with the web’s worldwide area name framework. A space name comprises of a two-level chain of command. The high level area name incorporate .com, .net. organization and so on. This will show the idea of the undertaking. Notwithstanding, every nation has been given exceptional space names. For instance .in demonstrate India, .ca shows Canada and so forth. The second level space name speaks to the trade name/trademark of the business/element/association and so on. For instance, in google.com, Google speaks to the second level area name. For the most part, a disagreement about area name emerges according to the second level space. Two indistinguishable second-level space names can’t exist together under a similar high level area name.

So as to enlist an area name, one needs to enlist it with ICAAN through a Registrar. These Registrars are certify by ICAAN. For instance, GoDaddy is one such Registrar. The Registrars distribute the area name on first start things out serve premise to the candidate. In this manner, there are odds of gatherings getting an area name enrolled without the bona fide or real expectation of utilizing it.

Domain Name Dispute

Domain names assume an essential job in business as it has been utilized by the normal open to recognize the business. A question corresponding to the domain name emerges when any gathering registers a previous trademark as their area name. It is vital that the trademark of the complainant must be indistinguishable or confusingly like the second level area of the contested domain name. This prerequisite principles out protests raised by a proprietor of the unregistered trademark. Domain names can likewise be enlisted and secured as trademarks at the national and worldwide level, anyway the equivalent needs to fulfill the standards as required for a substantial trademark.

They range from enacting separate legislation[1] to banking on already existing trademark laws for solving the disputes.[2] Over the period of time, they have been found grossly insufficient to deal with the domain name-trademark disputes, which involve transnational elements.[3] In response to this, the National Telecommunications and Information Administration of the US Department of Commerce took the first step in the direction of having an international domain name disputes resolution system.

The White Paper[4] issued by the National Telecommunications and Information Administration has asked the US government to call upon the World Intellectual Property Organization (WIPO) to initiate a process to resolve domain name trademark disputes.[5] Acting upon the US call, WIPO conducted a study involving international consultations, wherein seventeen consultative meetings were held in fifteen different cities throughout the world. It received 334 written submissions from governments, inter-governmental organizations, professional associations, corporations and individuals during this comprehensive study.

Finally, WIPO prepared a report on the Management of Internet Names and Addresses: Intellectual Property Issues, which was published on 30 April 1999.[6] It led the way for establishing Internet Corporation for Assigned Numbers and Names (ICANN) to administer the domain name system.[7] The ICANN in consultation with World Intellectual Property Organization (WIPO) has provided a policy for domain name dispute resolution, which is known as Uniform Dispute Resolution Policy (UDRP).[8]

Dispute Resolution Policy

On account of area name questions, all the enlistment centres must follow Uniform Domain Name Dispute Resolution Policy (UDRP), this will manage the contest emerging out of any space name. A holder of an enrolled trademark may start a grumbling with the UDRP. The standards of strategy will oversee how to start and direct the procedure under the UDRP.

In India, the Indian Dispute Resolution Policy (INDRP) manages space names enrolled .in Internet library. The debates including enlistment of .in space name are settled according to INDRP Rules. INDRP Rules of Procedures affirmed by National Internet Exchange of India (NIXI), which is a non-benefit organization to encourage the trading of local web traffic, commands that the questions identifying with space names enlisted with NIXI certify recorder will obligatorily receive intervention continuing as per Arbitration and Conciliation Act, 1996.

By enlisting the contested area with the NIXI licensed recorder, the proprietor of the space name has consented to the goals of the space name debates as per the INDRP and Rules encircled thereunder. The methodology under these contest goals approaches are managerial procedures.

Lawful Remedies

So as to effectively challenge space name, the proprietor of the trademark must demonstrate that the area name registrant has utilized the indistinguishable or confusingly comparable trademark of the complainant. Besides, the complainant must demonstrate that the registrant of the space name has no real enthusiasm for the area and the equivalent has been enlisted in dishonesty.

So as to beat a protest on the area name, the registrant must demonstrate that the proprietor of the space name is utilizing the area name in association with any merchandise or administration; or if the proprietor of the area name or his products and ventures have been usually related to the second level space name; or in the event that he is utilizing the area name for reasonable and non-business use with a bonafide aim.

In the event that if the test were fruitful the area name will be suspended or all the rights over it would be moved to the authentic proprietor. So as to acquire directive or remuneration, the proprietor of the trademark can record a suit at the common court.

Because of the development of business over the web, it has gotten critical to defend the trademark of a business on the web. Area name debates have advanced increasingly like web trademark encroachment. Be that as it may, it has gotten simpler to recognize trademark encroachment over the web for the owners of the trademark as opposed to distinguishing physical encroachment as the site can be gotten to over the globe. The arbitral council or the court has supported the proprietor of the trademark in its greater part of the choices.

References

[1] As has been done by the United States

[2] The list includes United Kingdom, Austria, India etc.

[3]Violation of trademark registered in one country can take place in another country by way of bad faith domain name registration. Such a situation would bring forward the problem of determination of jurisdiction and applicable law for solving the dispute.

[4] A policy statement on the Management of Internet Names and Addresses issued on 5 June 1998, available at Last visited, 08 August 2009.

[5] Andrew Christie, „The ICANN Domain Name Dispute Resolution System as a Model for Resolving Other Intellectual Property Disputes on the Internet‟, in David Vaver (ed.), Intellectual Property Rights – Critical Concepts in Law, Vol. V, (London: Routledge, 2006) pp. 180 – 193 at p. 181.

[6] Available at Last visited, 27 September 2013.

[7] Catherine Colston and Kirsty Middleton, Modern Intellectual Property Law, Second edition, (London: Cavendish Publishing Ltd., 2005) p. 619.

[8] The Policy was approved by ICANN on 24 October 1999. Last visited, 23 July 2009.


Author Details: Gauri Khera

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