INDIAN DOMAIN DISPUTES
RESOLUTION: AN INDIAN PERSPECTIVE
DISPUTE
DOMAIN NAME
In the context of ever-increasing premiums for important domains names, the differences between the Indian dispute resolution policy and international norms are a cause for concern, as Pravin Anand and Raunaq Kamath explain.
With domain names like
Insure.com selling for $16 million, it is clear that the value of online real estate has increased dramatically. Cybersquatters all over the world are registering domain names in bulk, a presumably easy way to ensure a quick profi t. Rights holders are, therefore, increasingly resorting to dispute resolution mechanisms to recover domain names.
Domain name disputes pertaining to a generic top-level domain (gTLD) name are governed by the Uniform Domain-Name Dispute-Resolution Policy (UDRP). T ese disputes are entertained by a dispute resolution service provider approved by the Internet Corporation for Assigned Names and Numbers (ICANN), such as the World Intellectual Property Organization (WIPO) and National Arbitration Forum (NAF).
A domain name dispute concerning the country code TLD (ccTLD) name for
36
India (.in) is governed by the .IN Dispute Resolution Policy (INDRP) and is overseen by the National Internet Exchange of India (NIXI).
While the INDRP and the UDRP follow similar procedures, the INDRP remains unique and is distinct from the UDRP. The most significant difference lies in the three criteria which a complainant must satisfy under the respective policies, namely:
(i) T e domain name must be similar to the complainant’s trademark;
(ii) The registrant must not have rights or legitimate interests in respect of the domain name;
(iii) T e domain name must be registered and/ or used in bad faith.
Trademarks Brands and the Internet Volume 2, Issue 2
T e fi rst diff erence is that under the INDRP, the absence of the conjunctive phrase “and” between the fi rst and second element suggests that in order to succeed, a complainant may simply satisfy the fi rst element. Alternatively, the complainant may satisfy the second and third element (which are conjoined with the phrase “and”) and not the fi rst. However under the UDRP, the complainant is expressly required to satisfy all three elements.
However, such a literal interpretation of the
elements prescribed under the INDRP can have disastrous ramifi cations. T is can be seen with a disjunctive reading of the elements which implies that a complainant can obtain a remedy against a registrant who has legitimate rights in a domain name which is registered and used in good faith, solely by virtue of its similarity to the complainant’s trademark.
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