DOMAIN SQUATTING/ TYPOSQUATTING & Resolution of Dispute
DOMAIN SQUATTING/ TYPOSQUATTING
&
RESOLUTION OF DISPUTE
1.1. Introduction:
It is recognized that domain names identify the entity that owns the website, and it function as trademark by identifying the source of the goods or services and it leads to a valuable assets. Not only an organization or Company, even an individual can also go for registration of domain name. But in case if someone is infringing the domain name in cyberspace, it not only leads to misuse of trademark but also amounts to typosquating and cybersquatting.
The draw line between typosquatting and cybersquatting is, in case of prior one, the party registers a domain name that is very close to another's trademark or name for the purpose of capitalizing on internet users typographical errors when entering a web address. Whereas in cybersquatting one person registers the domain name by misusing the another's name or trademark for the purpose of selling the domain name to the rightful owner at an inflated price.
1.2. Interpretation of Words:
1.3. Procedure for indentifying ownership:
If a domain name is already registered in such case "Who Is" search will give you the details of whom it is registered to and if it is not registered is available for registration. Each registrar is responsible for creating and maintaining who is database for their customers. Once the domain name is registered the details of registrant is made public available in online.
1.4. Assignment of Domain Name:
Domain name is subject to transfer between members are accepted, but the changing of Administrative, Technical and Billing contact information does not affect the ownership of domain name unless there is a legal change in ownership. There is no transfer fee but first the new owner has to become a member then the transfer is valid for 1 year subject to renewal. The whole transfer takes place in online only. The maximum limit for giving effect to such change is 10 days.
1.5. Dispute Resolution through ADR System:
For dealing with Domain squatting/ Tposquatting courts system can be used, but for filing the case[1] generally the jurisdictional issues will arise relating to plaintiff and defendant. In order to overcome they chosen the international arbitration system which deals with domain disputes called alternative method of Uniform Dispute Resolution Process (UDRP) which was created by ICANN[2] as compared with it, it is easier which is a private nonprofit technical coordination body for the internet's name and numbering system, it coordinates the domain name system to ensure that every address is unique and that all users of the internet can locate valid addresses.
The ICANN adopted a minimum standards for domain name registrars which and also adopted a Uniform Domain Name Dispute Resolution policy where all the registrars have to adopt that policy. But once the dispute is reached to final either party may file a civil action in a court of competent jurisdiction against the other party.
1.6. WIPO Dispute Resolution:
Along with the above the WIPO is providing a domain name mediation services since 1994.Once the application is filed with the WIPO domain name dispute arbitration panel. The same can be resolved by choosing an arbitrator or a panel of arbitrators consisting of three. Once the filing are started the respondent has 20 days time to submit a response.
Law governing the dispute is regulated by the terms and conditions agreed by the registrar and respondent. For proving his infringement the applicant has to prove that he owns a trademark registered or unregistered, identical or similar to other or opponent has no legitimate rights or interest or it has been using in bad faith.
Once all the above are proved than the arbitrator can resolve the complaint in one of three ways: (1) The arbitrator will order the domain name registrar to cancel the domain name; (2) the arbitrator will order the domain name registrar to transfer the registration to the complainant; or, (3) if the complainant fails to carry the substantive burden, the arbitrator will deny the complaint.
1.7. Position in India:
In case if the typosquatting is occurred in India they can file the case with the registry handled by National Internet Exchange of India (NiXI) who brings the matter to fast track dispute resolution process where the decision is transferred within 30 days of filing a complaint. Recently an FIR was filed under the provisions of IT Act, 2000, Sections – 66/ 66A/ 43 and also under the Indian Penal Code Section – 469. But the same has been squashed on the ground that the ten acts laid down under it doesn't cover the domain name and its violation.
1.8. Recent Update:
On November 12, 2010 the WIPO Arbitration and Mediation Center is providing domain name dispute resolution services for Brazil basing on a BR policy. This BR policy is inspired by the UDRP and it provides protection to certain types of rights including commercial and other names and also providing e-filing process.
&
RESOLUTION OF DISPUTE
1.1. Introduction:
It is recognized that domain names identify the entity that owns the website, and it function as trademark by identifying the source of the goods or services and it leads to a valuable assets. Not only an organization or Company, even an individual can also go for registration of domain name. But in case if someone is infringing the domain name in cyberspace, it not only leads to misuse of trademark but also amounts to typosquating and cybersquatting.
The draw line between typosquatting and cybersquatting is, in case of prior one, the party registers a domain name that is very close to another's trademark or name for the purpose of capitalizing on internet users typographical errors when entering a web address. Whereas in cybersquatting one person registers the domain name by misusing the another's name or trademark for the purpose of selling the domain name to the rightful owner at an inflated price.
1.2. Interpretation of Words:
- Top Domain and Second Level Domain: Generally a domain name consists of two parts namely drreddys.com. The first part of the domain named comes as the second level domain and the second part ".com" becomes the top level domain. Further the second level domain can be divided further into sub-level domains having a separate domains names under the same roof.
- Registry: A registry is a company or organization that maintains a centralized registry database for the Top-Level Domains. Currently there is only one Registry for every Top-Level domain, .com, .net and .org. NSI Registry maintains this Registry.
- Registrar:
A registrar is an ICANN accredited company or organization that is authorized to provide registration services for the top-level domains such as .com, .org and .net. Registrars have contractual agreements with their customers. A Registrar submits all newly registered domains into the Registry. - Registrant: He is the real owner of a domain name. Here the owner may be an individual or an organization.
1.3. Procedure for indentifying ownership:
If a domain name is already registered in such case "Who Is" search will give you the details of whom it is registered to and if it is not registered is available for registration. Each registrar is responsible for creating and maintaining who is database for their customers. Once the domain name is registered the details of registrant is made public available in online.
1.4. Assignment of Domain Name:
Domain name is subject to transfer between members are accepted, but the changing of Administrative, Technical and Billing contact information does not affect the ownership of domain name unless there is a legal change in ownership. There is no transfer fee but first the new owner has to become a member then the transfer is valid for 1 year subject to renewal. The whole transfer takes place in online only. The maximum limit for giving effect to such change is 10 days.
1.5. Dispute Resolution through ADR System:
For dealing with Domain squatting/ Tposquatting courts system can be used, but for filing the case[1] generally the jurisdictional issues will arise relating to plaintiff and defendant. In order to overcome they chosen the international arbitration system which deals with domain disputes called alternative method of Uniform Dispute Resolution Process (UDRP) which was created by ICANN[2] as compared with it, it is easier which is a private nonprofit technical coordination body for the internet's name and numbering system, it coordinates the domain name system to ensure that every address is unique and that all users of the internet can locate valid addresses.
The ICANN adopted a minimum standards for domain name registrars which and also adopted a Uniform Domain Name Dispute Resolution policy where all the registrars have to adopt that policy. But once the dispute is reached to final either party may file a civil action in a court of competent jurisdiction against the other party.
1.6. WIPO Dispute Resolution:
Along with the above the WIPO is providing a domain name mediation services since 1994.Once the application is filed with the WIPO domain name dispute arbitration panel. The same can be resolved by choosing an arbitrator or a panel of arbitrators consisting of three. Once the filing are started the respondent has 20 days time to submit a response.
Law governing the dispute is regulated by the terms and conditions agreed by the registrar and respondent. For proving his infringement the applicant has to prove that he owns a trademark registered or unregistered, identical or similar to other or opponent has no legitimate rights or interest or it has been using in bad faith.
Once all the above are proved than the arbitrator can resolve the complaint in one of three ways: (1) The arbitrator will order the domain name registrar to cancel the domain name; (2) the arbitrator will order the domain name registrar to transfer the registration to the complainant; or, (3) if the complainant fails to carry the substantive burden, the arbitrator will deny the complaint.
1.7. Position in India:
In case if the typosquatting is occurred in India they can file the case with the registry handled by National Internet Exchange of India (NiXI) who brings the matter to fast track dispute resolution process where the decision is transferred within 30 days of filing a complaint. Recently an FIR was filed under the provisions of IT Act, 2000, Sections – 66/ 66A/ 43 and also under the Indian Penal Code Section – 469. But the same has been squashed on the ground that the ten acts laid down under it doesn't cover the domain name and its violation.
1.8. Recent Update:
On November 12, 2010 the WIPO Arbitration and Mediation Center is providing domain name dispute resolution services for Brazil basing on a BR policy. This BR policy is inspired by the UDRP and it provides protection to certain types of rights including commercial and other names and also providing e-filing process.
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