INTERNET FIGHTS


MULTIPLE THREATS: IP ON THE INTERNET


Companies and individuals operating online need to be wary of a multitude of possible problems, as Safi r Anand describes.


Anonymity


Himalayan Drug Co (Himalaya) launched its website T eHimalayaDrugs.com in 1998. T e website listed 209 Himalayan herbs and their details, which had required the company to employ skill, labour and money to develop this huge database of herbs. Another company launched a similar website, ayurveda.virtulave. net, which reproduced the entire data of the Himalaya website. A comparison showed that the other company had copied the entire data of Himalaya’s listing word for word, including grammatical and syntactic errors.


Himalaya Drug Co was able to prove that the other company had attempted to pass off its herbal database as their own. T e court gave Himalaya the entitlement to compensatory damages as well as decree for INR 794,227.00, representing punitive/exemplary damages.


Phishing


Phishing is characterised by attempts to fraudulently acquire sensitive information, such as passwords, usernames, login IDs, ATM PINs and credit card details, by masquerading as a trustworthy person or business in an apparently offi cial electronic communication, such as an email or an instant message.


ABC Consultants, a HR consultancy fi rm, misused the name of Nasscom for its headhunting activities, by


extracting the


resumes of people invited to a conference. T e Delhi High Court was quick to respond, issuing a ruling within 21 days of the complaint being fi led. T e court held that phishing was actionable under the Indian law on the basis of conventional torts, such as invasion of privacy, nuisance and negligence, etc. T e court granted


40 Trademarks Brands and the Internet


INR1,600,000 ($24,000) in damages against ABC and these were paid in court.


Metatags


A metatag or metadata is a keyword or phrase embedded in a website’s HTML code for identifying and categorising the contents of a website by Internet search engines. A potential trademark infringement arises when a website contains its competitors’ trademarks or trade names in its metatags. Continuation of


this practice diverts consumers from an authorised site to another.


T e ruling in Tata Sons Limited v Bodacious Tatas followed a decision by a World Intellectual Property Organization Arbitration and Mediation Centre panel ordering the transfer of a domain name that incorporated one of the most popular trademarks in India, ‘Tata’. T e defendant, Bodacious Tatas, also used ‘Tatas’ as a trademark and a metatag. T e Delhi High Court further restrained Bodacious’ use of Tata not only as a domain name, but also as a metatag.


Passing off


Satyam, an IT company, had a reputation in the market and had registered the name ‘Sifynet’ and various other names with ICANN and WIPO. Rival company Sifynet registered the domain names Siff ynet.com and Siff ynet.net, which were similar to Satyam’s domain name Sifynet.com. T e word Sify was fi rst coined by Satyam using elements from its corporate name Satyam Infoway, which had a very wide reputation and goodwill in the market.


T e Supreme Court held that “domain names are business identifi ers, serving to identify and distinguish the business or its goods and


Volume 2, Issue 2 olume 2, Issue 3 Hyperlinking


A hyperlink usually links one document on the Internet to another document (the target). A hyperlink or link is a reference from one website to another, usually distinguished by underlined text in a diff erent colour or a graphic or an image. Conventionally, linking from others has been welcomed by linked websites, as it increases traffi c to the linked website, the advertising rates and thus the revenue of the linked website.


T e Delhi High Court ruled in favour of Mattel Inc, the holder of international rights in the mark ‘Scrabble’ for games. T e court ordered RJ


www.worldipreview.com


services by a corresponding online location; an action of passing off can be found where domain names are involved”. T e court also observed that a domain name has all the characteristics of a trademark, and ruled in favour of the plaintiff .


Cyber squatting


Cyber squatting refers to the bad faith registration of a domain name containing another person’s brand or trademark in a domain name. It can be defi ned as registering, traffi cking in, or using a domain name with bad faith. T e cyber squatter then off ers to sell the domain to the person or company who owns a trademark contained within it at an infl ated price.


Domain Active Property Ltd, an Australian entity, was ordered by WIPO to transfer the domain SBICards.com to the Indian company State Bank of India. T e Australian entity had hijacked the domain name hoping to later sell it for a heſt y sum. T e WIPO panel accepted SBI's counsel’s argument that “the Australian company was in the business of buying and selling domain names through its website”.


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