Prof. (Dr.) Sreenivasulu N.S ((Professor of Law, National University of Juridical Sciences, Kolkata, Chairperson, MHRD, Government of India, and Formerly Founder and Chairman,Department of Studies and Research in Law, Karnataka State Open University, Mysore, Faculty of Law at National Law School, Bangalore and University of Mysore, Karnataka.))and Jagadish. A.T ((Faculty of Law, JSS Law College, Autonomous, Mysore and Research Scholar, Department of Studies and Research in Law, Karnataka State Open University, Mysore, Karnataka.)).
Domain names are assets of cyberspace ((The electronic medium of computer networks in which online communication takes place. The word “cyberspace” is credited to William Gibson, who used it in his book, Neuromancer, written in 1984. Gibson defines cyberspace as “a consensual hallucination experienced daily by billions of legitimate operators, in every nation, by children being taught mathematical concepts… A graphical representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the non-space of the mind, clusters and constellations of data” (New York: Berkley Publishing Group, 1989), pp. 128)). The quintessence of domain name lies in the fact that, with growth of internet the magnitude of domain name have sky-rocketed. No doubt from birth of any technology followed by its growth it faces challenges and obstacles, so in case of domain names. With the latest enter to IPv6 (Internet protocol version 6) 128-bit integer addresses to be assigned to hosts, or systems, bringing up the number of allowable addresses to a whopping 340 trillion, trillion, trillion which provides for infinite plot of ground for World Wide Web to grow in ((The Hindu, Thursday, June7, 2012 Karnataka edition, Bangalore)). The corporations now have lot more freedom to define their addresses on the internet. The new internet protocol is considered to the unique address for every human being on the planet earth. Domain names are considered has one of the most valuable assets of any business concern. A domain name on the cyberspace is considered to be the counterpart of a trademark ((A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.))in the conventional field of business and commerce.
Domain names have become the backbone of internet revolution. The potential of the internet in creating an information superhighway has acquired a distinct commercial viability because of the advent of domain names. Section 45 of the Lanham Act ((The Lanham Act, 15 U.S.C. §§ 1051 et seq., was enacted by Congress in 1946 based on the power granted to it by the Commerce Clause. It provides for a national system of trademark registration and protects the owner of a federally registered mark against the use of similar marks if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur. The scope of the Lanham Act is independent of and concurrent with state common law. See http://www.law.cornell.edu/wex/lanham_act last visited on 10-03-2014)), defines Domain name as “any alphanumeric designation, which is registered with or assigned by any Domain name registrar, Domain name registry or other domain name registration authority as a part of electronic address on the internet.” Though domain names serve a purely technological function of locating website in cyberspace, the desire for prestigious business addresses in cyberspace has created a rush in the business name of the entity ((Edited by Manu Law Shahalia, Perspectives in IP Law- Many sides to a coin, University Law Publishing company, 2003 Edition.)).
In this article there is an attempt to highlight the legal challenges on account of domain names, and the possible solutions to overcome those challenges, legal protection that can be afforded to the domain names.
Domain names functions as the address for a web site, and disputes over domain names have become more common and more intense as the popularity of the Internet grows ((Available at http://www.bitlaw.com/internet/webpage.html last visited on 22-02-2014)).Domain names became a tradable commodity, a market resource object being contended by interested parties. Legal issues on domain name have arisen, and accordingly more and more disputes between domain name holders and complainants have been taken before relative courts all over the world. There are conflicting decisions among different jurisdictions and even within the same nation. Wildly divergent levels of technical comprehension seem to have led to somewhat inconsistent justifications. However, it is clear that in domain name litigations the judicial decision making process is becoming a globalized event, and domain name litigation will have a significant impact on the conflicts involving all manner of e-commerce issues ((http://lawyer.20m.com/English/articles/domainname.htm last visited on 21-01-2014)).
Background and History of Internet Domain names
The Internet ((The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite (often called TCP/IP, although not all applications use TCP) to serve billions of users worldwide. It is a network of networks that consists of millions of private, public, academic, business, and government networks, of local to global scope, that are linked by a broad array of electronic, wireless and optical networking technologies. The Internet carries an extensive range of information resources and services, such as the inter-linked hypertext documents of the World Wide Web (WWW) and the infrastructure to support email. http://en.wikipedia.org/wiki/Internet visited on 07-01-2014
The internet is defined as a “global network connecting millons of computer”. Lee, Christopher, The Development of Arbitration in the Resolution of Internet Domain Name Dispute,7Rich. J.L.& teCH.2, page.14,(2000).))is often described as a “network of networks” because it is not a single physical entity but, in fact, hundreds of thousands of interconnected networks linking many millions of computers around the world. Computers connected to the Internet are identified by a unique Internet Protocol ((IP (Internet Protocol) is the primary network protocol used on the Internet, developed in the 1970s. On the Internet and many other networks, IP is often used together with the Transport Control Protocol (TCP) and referred to interchangeably as TCP/IP. IP supports unique addressing for computers on a network. Most networks use the Internet Protocol version 4 (IPv4) standards that features IP addresses four bytes (32 bits) in length. The newer Internet Protocol version 6 (IPv6) standard features addresses 16 bytes (128 bits) in length))number that designates their specific location, thereby making it possible to send and receive messages and to access information from computers anywhere on the Internet. Domain names were created to provide users with a simple location name, rather than requiring them to use a long list of numbers. IP addresses are binary numbers, but they are usually stored in text files and displayed in human-readable notations, such as 172.16.254.1 (for IPv4), and 2001:db8:0:1234:0:567:8:1 (for IPv6). Top Level Domains ((A top-level domain (TLD) is one of the domains at the highest level in the hierarchical Domain Name System of the Internet. The top-level domain names are installed in the root zone of the name space))appear at the end of an address and are either a given country code, such as .in or .uk, or are generic designations Generic Top Level Domains (gTLDs) ((A gTLD (generic top-level domain name) is the top-level domain name of an Internet address that identifies it generically as associated with some domain class, such as .com (commercial), .net (originally intended for Internet service providers, but now used for many purposes), .org (for non-profit organizations, industry groups, and others), .gov (U.S. government agencies), .mil (for the military), .edu (for educational institutions); and .int (for international treaties or databases and not much used). For example, in the domain name, www.ibm.com, .com is the chosen gTLD. In addition to the gTLD, there is the ccTLD (country code top-level domain name) that identifies a specific national domicile for an address. (For example .in for India).)), such as .com, .org, .net, .edu, or .gov. The Domain Name System (DNS) is the distributed set of databases residing in computers around the world that contain the address numbers, mapped to corresponding domain names. Those computers, called root servers, must be coordinated to ensure connectivity across the Internet ((Lennard G. Kruger, Internet Domain Names: Background and Policy Issues October 28, 2009 http://www.au.af.mil/AU/AWC/AWCGATE/crs/97-868.pdf last visited on 07-05-2014)).
The Internet originated with research funding provided by the Department of Defense Advanced Research Projects Agency ((The Defence Advanced Research Projects Agency (DARPA) is a unique research organization established to maintain the U.S. military’s technological pre-eminence. Essentially, it’s the intellectual sandbox of the Defence Department, freed from many of the constraints imposed on other agencies so it can pursue riskier, more innovative research. Over the years, DARPA has helped develop technologies that have also worked their way into the civilian world, including the forerunner of the Internet. http://www.allgov.com/departments/department-of-defense/defense-advanced-research-projects-agency-darpa?agencyid=7159 visited on 18-02-2014))to establish a military network. As its use expanded, a civilian segment evolved with support from the National Science Foundation ((The National Science Foundation (NSF) is an independent federal agency created by Congress in 1950 “to promote the progress of science; to advance the national health, prosperity, and welfare; to secure the national defense.” With an annual budget of about $6.9 billion (FY 2010), we are the funding source for approximately 20 percent of all federally supported basic research conducted by America’s colleges and universities. In many fields such as mathematics, computer science and the social sciences, NSF is the major source of federal backing. http://www.nsf.gov/about/ visited on 26-04-2014.))and other science agencies. While there were no formal statutory authorities or international agreements governing the management and operation of the Internet and the DNS, several entities played key roles in the DNS. For example, the Internet Assigned Numbers Authority ((The Internet Assigned Numbers Authority (IANA) is a department of ICANN responsible for coordinating some of the key elements that keep the Internet running smoothly. Whilst the Internet is renowned for being a worldwide network free from central coordination, there is a technical need for some key parts of the Internet to be globally coordinated – and this coordination role is undertaken by IANA. http://www.iana.org/about/ visited on 16-05-2014.)), which was operated at the Information Sciences Institute/University of Southern California under contract with the Department of Defense, made technical decisions concerning root servers, determined qualifications for applicants to manage country code TLDs, assigned unique protocol parameters, and managed the IP address space, including delegating blocks of addresses to registries around the world to assign to users in their geographic area.
National Science Foundation was responsible for registration of non-military domain names, and in 1992 put out a solicitation for managing network services, including domain name registration. In 1993, NSF signed a five-year cooperative agreement with a consortium of companies called InterNic. Under this agreement, Network Solutions Inc. ((Network Solutions maintains the Internet Number Registry and manages the domain root server for the entire internet… From experience, we have learned the importance of maintaining up-to-date zone files and making them available for propagation throughout the world. http://www.livinginternet.com/i/iw_mgmt_netsol.htm last visited on 14-05-2014)), a Herndon, VA, engineering and management consulting firm, became the sole Internet domain name registration service for registering the .com, .net, and .org. gTLDs.
After the imposition of registration fees in 1995, criticism of NSI’s sole control over registration of the gTLDs grew. In addition, there was an increase in trademark disputes arising out of the enormous growth of registrations in the .com domain. There also was concern that the role played by IANA lacked a legal foundation and required more permanence to ensure the stability of the Internet and the domain name system. These concerns prompted actions both in the United States and internationally.
An International Ad Hoc Committee (IAHC), a coalition of individuals representing various constituencies, released a proposal for the administration and management of gTLDs on February 4, 1997. The proposal recommended that seven new gTLDs be created and that additional registrars be selected to compete with each other in the granting of registration services for all new second level domain names. To assess whether the IAHC proposal should be supported by the U.S. government, the executive branch created an interagency group to address the domain name issue and assigned lead responsibility to the National Telecommunications and Information Administration ((NTIA is the Executive Branch agency that is principally responsible for advising the president on telecommunications and information policy issues. NTIA’s programs and policymaking focus largely on expanding broadband Internet access and adoption in America, expanding the use of spectrum by all users, and ensuring that the Internet remains an engine for continued innovation and economic growth.))of the Department of Commerce (DOC). On June 5, 1998, DOC issued a final statement of policy, “Management of Internet Names and Addresses.” Called the White Paper, the statement indicated that the U.S. government was prepared to recognize and enter into agreement with “a new not-for-profit corporation formed by private sector Internet stakeholders to administer policy for the Internet name and address system ((Management of Internet Names and Addresses, National Telecommunications and Information Administration, Department of Commerce, Federal Register, Vol. 63, No. 111, June 10, 1998, 31741)).” In deciding upon an entity with which to enter such an agreement, the U.S. government would assess whether the new system ensured stability, competition, private and bottom-up coordination, and fair representation of the Internet community as a whole.
The White Paper endorsed a process whereby the divergent interests of the Internet community would come together and decide how Internet names and addresses would be managed and administered. Accordingly, Internet constituencies from around the world held a series of meetings during the summer of 1998 to discuss how the New Corporation might be constituted and structured. Meanwhile, IANA, in collaboration with NSI, released a proposed set of bylaws and articles of incorporation. The proposed new corporation was called the Internet Corporation for Assigned Names and Numbers ((ICANN (Internet Corporation for Assigned Names and Numbers) is the private (non-government) non-profit corporation with responsibility for IP address space allocation, protocol parameter assignment, domain name system management, and root server system management functions, the services previously performed by the Internet Assigned Numbers Authority (IANA). (ICANN is usually pronounced EYE-can, as in “I can at least try to manage the Internet.”). )). After five iterations, the final version of ICANN’s bylaws and articles of incorporation were submitted to the Department of Commerce on October 2, 1998. On November 25, 1998, DOC and ICANN signed an official Memorandum of Understanding (MOU), whereby DOC and ICANN agreed to jointly design, develop, and test the mechanisms, methods, and procedures necessary to transition management responsibility for DNS functions—including IANA—to a private-sector not-for-profit entity.
On September 17, 2003, ICANN and the Department of Commerce agreed to extend their MOU until September 30, 2006. The MOU specified transition tasks which ICANN agreed to address. On June 30, 2005, Michael Gallagher, then-Assistant Secretary of Commerce for Communications and Information and Administrator of NTIA, stated the U.S. government’s principles on the Internet’s domain name system. Specifically, NTIA stated that the U.S. government intends to preserve the security and stability of the DNS, that the United States would continue to authorize changes or modifications to the root zone, that governments have legitimate interests in the management of their country code top level domains, that ICANN ((Besides providing technical operations of vital DNS resources, ICANN also defines policies for how the “names and numbers” of the Internet should run.))is the appropriate technical manager of the DNS, and that dialogue related to Internet governance should continue in relevant multiple fora ((See http://www.ntia.doc.gov/ntiahome/domainname/USDNSprinciples_06302005.pdf last visited on 02-05-2014)).
On September 29, 2006, DOC announced a new Joint Project Agreement (JPA) with ICANN which was intended to continue the transition to the private sector of the coordination of technical functions relating to management of the DNS. The JPA extended through September 30, 2009, and focused on institutionalizing transparency and accountability mechanisms within ICANN. On September 30, 2009, DOC and ICANN announced agreement on an Affirmation of Commitments (AoC) to “institutionalize and memorialize” the technical coordination of the DNS globally and by a private-sector-led organization ((Affirmation of Commitments by the United States Department of Commerce and the Internet Corporation for Assigned Names and Numbers, September 30, 2009, available at http://www.ntia.doc.gov/ntiahome/domainname/Affirmation_of_Commitments_2009.pdf last visited on 02-06-2014)). The AoC affirms commitments made by DOC and ICANN to ensure accountability and transparency; preserve the security, stability, and resiliency of the DNS; promote competition, consumer trust, and consumer choice; and promote international participation ((http://www.fas.org/sgp/crs/misc/97-868.pdf last visited on 06/04/2014)).
Legal challenges on account of domain names –contractual dispute
The formation of contract in cyberspace are fascinating, while rules on the formation of contracts are clear in the physical world, there are ambiguities in the electronic contracts. The Indian Contract Act, 1872 applies to electronic contract (e-contract) also called as ‘online contract’, which is entered in India and recognised in section10A of the Information Technology Act-2000 ((Section 10A of The Information Technology Act, 2000, Validity of contracts formed through electronic means: – Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.)). The signature used in the physical transactions is replaced by electronic signature in the e-contract and written document (record) is replaced by electronic record. The main issue involving the transmission of a message through different electronic mechanisms such as electronic mail is when the message was considered sent or received. For sending or dispatch, it is proposed that it occurs when the message enters a system outside the control of the sender. For the receipt, a system of designating specific electronic mailboxes as receiving points is proposed. A message is deemed received by such designated mailboxes when it enters the system. If there is no designation, it is also to a mailbox other than designated one; it is received when the recipient retrieves the message. The time and place of contract is also an issue in e-contract formation. There is ambiguity in certain issues such as; the proposal is to designate the place of dispatch and receipt as the regular place of business or residence of the sender and recipient respectively, regardless on the actual place of receipt. The UNCITRAL Model Law on Electronic Commerce ((The Model Law on Electronic Commerce (MLEC) purports to enable and facilitate commerce conducted using electronic means by providing national legislators with a set of internationally acceptable rules aimed at removing legal obstacles and increasing legal predictability for electronic commerce. In particular, it is intended to overcome obstacles arising from statutory provisions that may not be varied contractually by providing equal treatment to paper-based and electronic information. Such equal treatment is essential for enabling the use of paperless communication, thus fostering efficiency in international trade. It was adopted on 12 June 1996 (additional article 5 bis adopted on 1998).))can be adopted to achieve a compromise on the formation of international digital contracts ((Rodney D Ryder, Introduction to internet law & policy, Wadhwa & Company, Nagpur, I edition 2007)).
The authentication by electronic means through digital signature (now electronic signature) ((Section 2 (ta) “electronic signature” means authentication of any electronic record by a subscriber by means of the electronic technique specified in the second schedule and includes digital signature Information Technology (Amendment) Act 2008.))has been made binding on the parties. But when it is a matter of enforcement of e-contracts the practical difficulties evolve. In India since we are at the embryonic stage of e-contracts there requires a clear rules and regulations and its application. The technical intricacies and the dynamic processes involved therein call for an analysis of the plausible principles that may govern online contracts ((Edited by S.K.Verma and Raman Mittal, Legal Dimensions of Cyberspace, Indian Law Institute, New Delhi, 2004, Article by:- Raghavendra S.Srivatsa and Sukruta R., Online Contracts)). The arguable question is whether an online contract can be legally valid and enforceable? For a solution it is to be noted that how the offer originated and communicated, and its acceptance, because a contract is formed by an enforceable agreement. However there are new developments in online contracts, say the application of classic rule of the law of contract that normally applies in a situation where the parties are at a distance and the communication of offer and acceptance is not contemporaneous is what is popularly referred to as the ‘mailbox rule’ or the ‘postal rule’. ((The essence of the rule is that acceptance of an offer is binding qua the offeree once it leaves his control, whether or not it has been received or is within the knowledge of the offeror.))There are other issues such as choice of law and jurisdiction, capacity of parties, free consent, formalities in writing, signature and delivery etc. The online contract no doubt holds the key to the future of e-commerce. In an attempt to ensure confidence, many international organisations have proposed treaties, model laws and protocols to encourage certainty and stability for these international electronic commercial practices and in relation to laws of contract ((These organizations have included the organization for Economic Cooperation and Development (OECD); the United Nations; the Asia-Pacific Economic Cooperation forum (APEC); the World Trade Organization (WTO) and the UN Commission on International Trade Law (UNCITRAL).)). The UNCITRAL Model Law of Electronic Commerce (Model Law) has proved the most popular, with significant international acceptance by national legislatures.
Formation of e-contract through websites
There are three types of e-contract, clickwrap, browsewrap, shrinkwrap contracts.
On e-commerce websites a user is asked to register where he fills in his personal particulars and contact information. The user is asked to read the terms and conditions of service, privacy policy and disclaimers mentioned on website and then click on ‘I agree’ button such user avails any service or purchases any products advertised on the website. When user clicks on ‘I agree’ button, he is deemed to have read and consented to all the terms and conditions mentioned on the website. The clicking on the ‘I agree’ button forms an e-contract known as clickwrap agreements.
Browsewrap terms do not require and express consent of the user and its terms are generally accessible through a hyperlink ((Kunz, Christina L., et al., Browse- Wrap Agreements ; Validity of Implied Assent in Electronic from Agreements, Business Lawyer, Vol, 59, 279-280 (1st November, 2003).)). For making payments online consideration is effected through net baking or use of credit cards or service provider or online service providers such as Paypal ((Paypal is a internet service provider that facilitates transfer of payments using internet. It substitutes traditional payment mechanisms and charges service fee for rendering a service. The CC Avenue is also a payment processing gateway using Verisign 128 bit security and CVM verification))or CC Avenue.
Shrinkwrap Agreements comprise of agreements wherein the product which is purchased bears the terms and conditions and displayed on a box in which the product is sold. When a user opens the box or uses the product or fails to return the product to the point of sale, it is deemed that the user has given his consent and duly accepted the terms therein ((Karnika Seth, Computers, Internet and New Technology Laws, LexisNexis Butterworths Wadhwa, Nagpur, 2012)).
The electronic contracts are legally recognised as a valid contract in India the UNCITRAL model law harmonises these ‘functioning equivalence’ principles that facilitate the growth of E-commerce and build consumer confidence in the modelled its IT law based on the UNCITRAL Model law. In India, where the dispute arises in e-contracts the Information Technology Act- 2000 along with Indian Contract Act 1872 is made applicable in settling the dispute.
Territorial jurisdiction issues
The jurisdiction issues in India require two general requirements to be fulfilled since India is a common law country. First, whether the court has jurisdiction over the defendant and secondly, whether the court has jurisdiction over the subject matter of the dispute ((Pravin Anand, has written chapter on India, Torsten Bettinger, General Editor and Principal Author,
Domain Name Law and Practice, Oxford University Press, 2005)). The Trademarks Act, 1999 section 27 lays down No action for infringement in case of unregistered trademark (passing off action for unregistered trademark). Section 134(1) lays down that the suit for the infringement of registered trademark or relating to any right in a registered trademark or for passing off shall not be instituted in any court inferior to a district court having jurisdiction to try the suit. The Code of Civil Procedure 1908, section 20 as a general rule lays down that a suit shall be instituted in a court within the local limits of whose jurisdiction the defendant or defendants (in case more than one) resides or carries on business or personally works for gain or where the cause of action, wholly or partly, arises. The Trademarks Act 1999 is an exception to section 20 of the Code of Civil Procedure ((Code of Civil Procedure, 1908: Procedural law in India to decide civil disputes.)), in respect of suits for infringement of registered Trademark.
In case of a domain name, the use of which amounts to an infringement of a registered trademark, suit can be instituted before a court in whose local jurisdiction the plaintiff or one of the plaintiffs in case there are more than one, actually and voluntarily resides or carries on business or personally works for gain. It is pertinent to note that the exception is confined to suits in respect of infringement of registered trademark and does not extend to passing off actions.
The jurisdiction for filing suits in respect of infringing domain names can also be determined by the cause of action that becomes contentious issues over the internet. The other important issue include where the trademark owner has his official business in India and domain name infringing his trademark is registered by the defendant located in the other country, which court would have the competent jurisdiction to decide the matter. In these cases whether the trademark owner get the remedy by filing the suits in Indian courts, will the order be enforceable against the defendant ((Supra note.36)). The Delhi High Court in Casio India Co. Limited v/s Ashita Tele Systems Pvt. Limited ((106 (2003) DLT 554, 2003 (70) DRJ 742))followed the principle of global jurisdiction laid down by the High Court of Australia in Dow Jones & Co. Inc v Gutnick (([2002) HCA 56))in respect of the Internet and the World Wide Web. The Delhi High Court held that “once access to the impugned domain name website, could be had from anywhere else, the jurisdiction in such matters cannot be confined to the territorial limits of the residence of the defendant.” The defendant in Casio case was based in Mumbai and the enforceability of the injunction never became an issue, the Indian courts have excised extra-territorial jurisdiction. Thus, injunctions have been granted by Indian courts against defendants not based in Indian in respect of the adoption and use of an infringing domain name. In spite of the fact that even registrars have not been within the territorial jurisdiction of the Indian courts, they have by and large honoured the orders passed by the courts. Illustratively, Network Solutions, Inc. has the practice of freezing the domain name and depositing the title papers for the domain names with the court granting an injunction against a domain name.
With the Indian courts willing to exercise jurisdiction even in case where the defendant is based outside India, the applicable law has not been an issue and the courts have followed the Indian law. Thus, the incorporation of trademark as a domain name can be challenged before the courts on the basis of infringement of trademark where the trademark is registered and other ingredients of infringement have been satisfied as per the provisions of the Trademark Act 1999. On the other hand, incorporation of an unregistered trademark in the domain name can be questioned under the common law tort of passing off ((Supra note.35)).
Cyber crimes and effect on consumer rights
Computers with the aid of internet have become the most dominating medium of communication, information, commerce and entertainment. The internet, with all the benefits of anonymity, reliability and convenience has become a platform for persons interested in making use of Net for illegal gainful purposes. Anything related to the internet was being prefixed with the word ‘cyber’, ((Cyber may refer to a common prefix used in growing number of terms to describe new things that are being made possible by the spread of computers. For example: Cyber culture emergent culture based on the use of computer networks. Cybercafé or Internet café, a business which provides internet access))the most appropriate term to reflect the new criminal phenomenon called ‘cybercrimes’. The world cybercrime may be said to be a crime committed on internet. Since the term cybercrime gives restricted meaning, the world ‘computer crimes’ may be used which encompass offences committed in relation to or with the help of computers ((Chapter by Devashish Bharuka & Ajit Joy, computer crimes, Edited by S.K Verma & Raman Mittal, Indian Law Institute, New Delhi, 2004)).
Today, the cybercrimes has been a potential challenge for the criminal justice system. Ordinarily, the law keeps pace with the technological changes in society. However, rapid technological advancement like the internet have left the law behind to a technical specialist, the internet is a global network of computers based on internet protocol and other high speed communications protocols with thousands of notes and millions of users ((Nandan Kamath, Law Relating to Computers Internet and E-commerce, Universal Law Publishing Co. Pvt, Ltd, Delhi, 4th Edition, 2009)). The internet has become an exciting way to communicate, to exchange e-mail, transfer files between computers, and remotely access host computers, It is also used as social media, mass media.
The use of Indian Penal Code to prosecute cybercrimes has got a new dimension after passing the Information Technology Act- 2000. The Act has been passed with the object ((Objective of The Information Technology Act,2000:- An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers’ Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto))of promoting a secure electronic environment dealing with issues subsidiary to this electronic environment such as contraventions relating to electronic transactions and Information Technology offences. The Information Technology Act- 2000 intends to give legal recognition to e-commerce and e-governance and facilitate its development as an alternative to paper based traditional methods they act seeks to protect the advancement in technology by defining crimes, prescribing punishment laying down procedures for investigation and forming regulating authorities. There has been an amendment to Indian Penal Code 1860, Indian Evidence Act 1872, Banker’s Book Evidence Act 1891 in order to prosecute cybercrime by facilitating collection and admissibility of evidence ((Supra note 30)).
Kinds of Computer Crimes/Offences
The computer crimes/offences may be classified as follows:
- Conventional crimes through computer: cyber defamation, digital forgery, cyber pornography, cyber stalking/harassment, Internet fraud, financial crimes, online gambling, and sale of illegal articles.
- Crimes committed on a computer network: hacking/unauthorized access, denial of service.
- Crimes relating to data alteration/destruction: virus/worms/Trojan horses/logic bomb, theft of internet hours, data diddling, salami attacks, steganography.
- Crimes relating to electronic mail: spamming/bombing, spoofing.
The biggest challenge to the law is to keep pace with technology. Cyber crime is the fastest growing crime in the world with millions of people affected every day. The effects of one successful attack on a corporation can have far-reaching implications, including financial losses at the corporate level, to stock losses and money lost for consumers or stock holders. Laws have been swiftly put into place to halt these types of attacks, but criminals find haven in countries with lax cyber crime laws ((http://www.ehow.com/list_6299041_impacts-computer-cyber-crime.html#ixzz28uOfYEFs visited on 21-05-2014)). It was reported that Software security services provider Norton said consumer cyber crime has cost the country around Rs. 42, 000 crores in the past 12 months, impacting 42 million people. Releasing the findings of its annual cyber crime report, it is estimated that over 42 million people fell victim to cyber crime in the past 12 months in the country, incurring around $8 billion in direct financial losses. In terms of cost, this is a full 18 per cent increase. Against this, the global loss has been pegged at $110 billion. The study further notes that as many as 66 per cent of adults have been a victim of cyber crime in their lifetime in the country. During the past 12 months, as many as 56 per cent of adults who go online here have experienced cyber crime – that is over 1,15,000 victims per day, 80 victims per minute and over one every second. The study is based on the findings of self-reported experiences of over 13,000 adults across 24 countries, Norton by Symantec said in a statement ((http://ibnlive.in.com/news/consumer-cyber-crime-cost-india–8-bn-report/290987-3.html visited on 10-05-2014)).
The impact of cyber crime is as follows ((http://www.itu.int/ITU-D/cyb/events/2007/praia/docs/cardoso-cybercrime-impact-praia-nov-07.pdf visited on 10-05-2014)):
- Diminished consumer confidence
- Lost productivity
- Loss of trade secrets
- Refused access to certain markets
Relationship between trademark and domain names
The primary issue to be decided is whether domain name and trademark are two faces of the same coin. Domain names are indeed different from trademarks. It is possible that the same trademark may be registered by different persons in different categories and different lines of business, it may be possible to register only one domain name corresponding to such trademark. This aspect of domain names has led to numerous legal problems.
Infringement of Trademark V/s Domain Name: Domain name disputes are relatively unheard of in the Indian courts. There have been hardly a handful of reported decisions regarding domain name disputes and the case law has still not developed in India. However, with the use of the internet catching up at an amazing pace in the country, the Indian courts would surely be faced with domain name disputes in times to come. A global study of domain name disputes would show that they could be broadly classified under the following heads:
Infringement: This refers to disputes where the original registrant intentionally trade off the resemblance between the domain name and another famous trademark. Thereafter, the registrant tries to encash on the reputation of the trademark holder by running a business similar to that of the trademark holder. In such cases, the use of the mark (domain name) would be illegal under the existing trademark law, regardless of whether the infringement occurred as an internet domain name or in any other context. The standard factors, which determine infringement under the traditional trademarks, law like:
- the strength of the trademark,
- the deceptive similarity between the plaintiff’s and the defendant’s mark,
- the likelihood of confusion in the minds of the public, etc.,
- Would apply in cases of infringement of domain name also.
Concurrent Claims: In this category of domain name disputes, there is more than one legitimate user of the domain name. Apparently, there is no intention to trade off a trademarked name and little or no potential for confusion between the products of the conflicting claimants. Both parties have a particular trademark of their own or a valid reason to use a particular domain name. For example, both Moonlight Computers and Moolight Dry Cleaners would be interested in registering the domain name ‘moonlight.com’.
The crime of Cybersquatting has significantly increased in last decade. In Pen books Pvt. Ltd.v Padmaraj ((2004(3) KLT 31))The Kerala High Court has defined Cybersquatting as follows:
Obtaining fraudulent registration with intent to sell the domain name to the lawful owner of the name at premium is called ‘cyber squatting’. The Trade Marks Act, 1999 neither define ‘Domain Name’ nor the offence of ‘Cybersquatting’. The domain name disputes are dealt the common law of passing off ((Aparna Viswanathan, Cyber Law-Indian & International Perspectives, Lexis Nexis Butterworths Wadhwa, Nagpur, First edition, 2012)).
Registration of Domain names in India:
The National Internet Exchange of India (NIXI) has created the IN Registry, an autonomous body with the primary responsibility for maintaining the .IN Country Code Top-Level Domains (.IN ccTLD) and ensuring its operational stability, reliability, and security. New policies have been formulated for registration of .IN domain names. The owners of registered trademark or service marks were given opportunity to apply for .IN domain names before general public. This period is called sunrise period which gave a preference to the existing trademarks and service mark owner ((Ibid.)). .IN Domain Name Dispute Resolution Policy (INDRP) was formulated by .IN Registry (in 2005) on the lines of the Uniform Domain Name Dispute Resolution Policy approved by the ICANN.
According to the .IN Registry, when there arises a dispute between the registrant and complainant regarding the use of .IN Internet Domain Name, the complainant can file a case under following circumstances:-
- If the registrant’s domain name is identical or confusingly similar to a name, trademark or service mark in which the Complainant has rights.
- If the registrant has no rights or legitimate interests in respect of the domain name; and The registrant is said to have legitimate interests in the domain name if:-
- If the registrant’s domain name has been registered or is being used in bad faith. In order to prove bad faith on the part of the Registrant, the following circumstances will be considered-
- Before any notice to the Registrant of the dispute, the registrant uses the domain name in connection with a bona fide offering of goods or services;
- The registrant has acquired no trademark or service mark rights; or
- The Registrant is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue ((Paragraph 7,. In Domain Name Dispute Resolution Policy)).
- Circumstances indicating that the Registrant has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant, who bears the name or is the owner of the trademark or service mark, or to a competitor of that Complainant, for valuable consideration in excess of the Registrant’s documented out-of-pocket costs directly related to the domain name; or
- The registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Registrant has engaged in a pattern of such conduct; or
- By using the domain name, the Registrant has attempted to attract Internet users to the Registrant’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s name or mark as to the source, sponsorship, affiliation, or endorsement of the Registrant’s website or location or of a product or service on the Registrant’s website or location ((Paragraph 6,. In Domain Name Dispute Resolution Policy)).
When a Complainant files a complaint to the .IN Regisry in any of the above mentioned cases, the Registrant is required to submit to a mandatory arbitration proceeding in compliance with the Policy and Rules made thereunder. The arbitrator is appointed by the .IN Registry. The only remedies available to the Complainant are limited to either requiring the cancellation of the Registrant’s domain name or the transfer of the Registrant’s domain name registration to the Complainant ((Paragraph 10,. In Domain Name Dispute Resolution Policy)). The foregoing is very similar to the domain name registration procedure which exists under ICANN ((Supra note 51)).
Registration of Domain names under ICANN
The Internet Corporation of Assigned Names and Numbers (ICANN) is responsible for the management of the internet domain name system. The ICANN approved the Uniform Domain Name Dispute Resolution Policy (UDRP) on October 24, 1999 which lays down the mandatory procedure for dispute resolution. The UDRP provides a mechanism for trademark owners to obtain domain names that have been fraudulently registered by cyber squatters. All registered owners of .com, .net and .org domain names (the ‘Registrant’) are subject to the UDRP by virtue of: (i) the registration agreements agreed with their registrars at the time of acquiring their domain names, or (ii) applying to ICANN to maintain or renew a domain name registration ((Clause 2, Uniform Domain Dispute Resolution Policy)).
The UDRP sets forth the type of disputes for which one is required to submit to a mandatory administrative proceeding. In the event that a third party (a ‘complainant’) asserts and proves each of the following-
- That the domain name sought to be registered is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
- That the person seeking to register the domain name has no rights or legitimate interests in respect of the domain name; and
- That the domain name has been registered and is being used in bad faith ((Clause 4(a), Uniform Domain Dispute Resolution Policy)).
The Administrative Panel will either cancel the domain name of the applicant or transfer the domain name to the complainant. The UDRP stipulates that the administrative panel decision is limited to cancellation of domain name of the applicant or for transfer of the said domain name to the complainant. No other relief can be granted by the administrative panel ((Clause 4(i), Uniform Domain Dispute Resolution Policy)).
The submission of a dispute before the Administrative Panel does not prevent the parties from seeking other remedies. Either party has the liberty of submitting the dispute to a court of competent jurisdiction for independent resolution before the mandatory administrative proceeding is commenced or after such proceeding is concluded ((Clause 4(k), Uniform Domain Dispute Resolution Policy)).
In the event of multiple disputes between the registrant and the complainant, either the registrant or the complainant may file a petition to consolidate the disputes before a single Administrative Panel. The petition should be made to the first Administrative Panel appointed to hear a pending dispute between the parties concerned. It is the sole discretion of the Administrative Panel to consolidate all such disputes ((Clause 4(f), Uniform Domain Dispute Resolution Policy)).
Global internet governance
There is a need for global internet governance in a democratic manner. Today internet is a major force, restructuring our economic, social, political and cultural systems. The reason for democratising internet governance is to keep it open, transparent and inclusive with civil society give an adequate avenue of meaningful substantive participation.
The governance issues include the following:
- Governance structures to handle cross sovereignty issues pertaining to use of language are not developed at all
- The ICANN internationalization of domain names (IDN) committee’s proposal is incremental in its ability to cope with the diversity and complexity of the real world of multilingual and multiscript situation. Its one size-fits-all model has not proven to work yet.
- No workable model of administration of internationalization of domain names IDNs has emerged from ICANN ((Dr. Tan Tin Wee, Vice Chairman, MINC, Associate Professor, National University of Singapore, A historical background, current activities and issues of Internationalized Domain Names, JDNA-MINC Joint Meeting, Tokyo, Japan,30th Sep 2002)).
India now willing to ICANN for internet governance
India has made-up its position on internet governance, hoping to become new voice of reason in issue of internet governance. The change was effected after inter-ministerial as well as multi-stakeholder consultation, is intended to distance India from any model propagating governments taking ‘charge ‘or ‘balkanising’ the internet. This unveiled at Budapest Cyber Space Conference ((The Hindu, Sunday, October14, 2012 Page no.10)). The Indian government’s changed stand on internet governance, though understated is expected to generate attention in the upcoming Internet Governance Forum.
Conclusion: Domain names are assets of modern businesses. This requires lot of concern and interest in administering this domain names since there are able to influence the overall development of an organisation, enterprise, or industry. In this article the author has made a attempt to discuss some issues concern to domain name and scope of the article is limited to only subject selected. The legal challenges on account of domain names are innumerable and require lot of attention to address it in point of fact. Legal protections that can afford to the domain names require strengthen of cyber law enforcement at different levels such local, individual, national and international level. The Background and history of Internet Domain name describes the evolution and growth domain names phase by phase. With advancement in science and technology there can be phenomenally growth in near future, opening to legal challenges such as in contractual disputes, territorial jurisdictional issues, cybercrimes and effect on consumer rights, relationship between trademark and domain names, registration of domain names in India and by ICANN, global internet governance issues etc. There is an attempt to explain the formation of e-contract, three types of e-contract that can be entered through websites; the jurisdictional issue is to be settled in case of cross border disputes for which consensus is required at international level; the effects of cybercrime on consumers includes: Diminished consumer confidence, Lost productivity, Loss of trade secrets, Refused access to certain markets; registration of domain name in India and by ICANN is discussed to throw a light on the procedure of registration and dispute settlement; lastly a current issue of global internet governance where there is voice of democratising internet governance for reasons such as to keep it open, transparent and inclusive with civil society give an adequate avenue of meaningful substantive participation.
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