March 5, 2021

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

According to dictionary Domain Name refers to the phrases and characters that internet site owners designate for his or her registered net addresses. The Internet Corporation for Assigned Names and Numbers (ICANN) manages the internet’s global area name gadget. An area name consists of a -stage hierarchy. The top-level area name includes .Com, .Net. Org and many others. This will indicate the character of the organization. In addition to it, every one of us has been given unique domains. For example .In suggest India, .Ca suggests Canada and so on. The 2nd stage domain name represents the trade name/ trademark of the commercial enterprise/ entity /organization etc. For example, in google.Com, Google represents the second one level area name. Generally, a dispute over domain name arises on the subject of the second level area. Two equal degree domains cannot co-exist under the same pinnacle degree domain name.

In order to check in a website, one has to sign up it with ICAAN through a Registrar. These Registrars are authorised with the aid of ICAAN. For example, Go Daddy is one such Registrar. The Registrars allocate the area call on first come first serve basis to the applicant. Therefore, there are chances of parties getting a website name registered without the bonafide or valid intention of the usage of it. Domain names play a critical role in commercial enterprise as it has been utilized by the not unusual public to become aware of the business. A dispute when it comes to the domain name arises while any birthday celebration registers an earlier trademark as their area name. It is essential that the trademark of the complainant must be identical or confusingly just like the second one level domain of the disputed domain name. This requirement rules out proceedings raised via an owner of the unregistered trademark. Domain names also can be registered and guarded as emblems at the national and international degree; however the same has to satisfy the criteria as required for a legitimate trademark.

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In the case of domain name disputes, all of the registrars have to comply with Uniform Domain Name Dispute Resolution Policy (UDRP), this will cope with the dispute arising out of any area call. A holder of a registered trademark may provoke a grievance with the UDRP. The regulations of procedure will govern how to initiate and conduct the proceeding under the UDRP.

In India, the Indian Dispute Resolution Policy (INDRP) offers with domain names registered in Internet registry. The disputes involving registration in area name are resolved as in keeping with INDRP Rules. INDRP Rules of Procedures permitted through National Internet Exchange of India (NIXI), which is a non-income employer to facilitate the alternate of home net site visitors, mandates that the disputes regarding domains registered with NIXI accredited registrar shall mandatorily adopt arbitration proceeding in accordance with Arbitration and Conciliation Act, 1996. By registering the disputed area with the NIXI approved registrar, the proprietor of the area name has agreed to the decision of the domain name disputes pursuant to the INDRP and Rules framed there under. The techniques below those dispute resolutions guidelines are administrative proceedings.

In order to successfully challenge a domain name, the owner of the trademark have to prove that the domain name registrant has used the equal or confusingly comparable trademark of the complainant. Secondly, the complainant should show that the registrant of the area call has no legitimate hobby inside the area and the same has been registered in awful faith.

In order to conquer a grievance at the area name, the registrant have to prove that the proprietor of the domain name is the use of the area name in connection to any goods or service; or if the owner of the area name or his items and offerings have been normally identified with the second level domain name; or if he is the usage of the domain name for fair and non-commercial use with a bonafide purpose. In case if the mission has been successful the area name might be suspended or all the rights over it would be transferred to the legitimate proprietor. In order to obtain injunction or reimbursement, the owner of the trademark can document a fit at the civil court.

While the INDRP and the UDRP observe comparable procedures, the INDRP remains specific and is distinct from the UDRP. The maximum large difference lies in the three criteria which a complainant should fulfill under the respective regulations, specifically:

(i) The area name needs to be much like the complainant’s trademark;

(ii) The registrant has to no longer have rights or valid pastimes in admire of the domain call;

(iii) The area name ought to be registered and/or used in terrible religion.

The first difference is that under the INDRP, the absence of the conjunctive phrase “and” between the primary and 2d detail indicates that to be able to be successful, a complainant may also sincerely satisfy the primary detail. Alternatively, the complainant may additionally fulfill the second and 1/3 element (which are conjoined with the word “and”) and no longer the primary. However beneath the UDRP, the complainant is expressly required to fulfill all three elements.

However, this sort of literal interpretation of the elements prescribed underneath the INDRP may have disastrous ramifications. This may be visible with a disjunctive reading of the factors which means that a complainant can achieve a remedy in opposition to a registrant who has valid rights in a site name that is registered and used in desirable faith, solely by using distinctive feature of its similarity to the complainant’s trademark.

Due to the enlargement of commercial enterprise over the internet, it has ended up extremely important to shield the trademark of a business at the internet. Domain call disputes have evolved more like internet trademark infringement. However, it has come to be easier to discover trademark infringement over the net for the proprietors of the trademark as opposed to figuring out physical infringement as the website can be accessed throughout the globe. The arbitral tribunal or the court docket has desired the proprietor of the trademark in its majority of the selections.

References

  • https://selvams.com/blog/understanding-domain-name-disputes-and-dispute-resolution-mechanis/
  • https://sg.inflibnet.ac.in/bitstream/10603/40547/12/14_chapter5.pdf

 


Author Details: Manaswini Medishetty

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