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Forensic Science
By: aditi sambhar

CYBER SQUATT – “A NEW EMBODIEMENT OF CYBER CRIME”
Introduction
“CYBER SQUATT” a new crime has crop up, although the crime emergence is few years back but it came in to limelight recently, due to which according to some jurist it has taken birth now only .With the advent of the Internet, the world today is witnessing a revolutionary change in the field of communications Everybody, who is somebody, seems to have something to do with the Internet. Wide spectrums of delinquencies like cyber-squatt come under the umbrella term of 'cyber crime'
The term cyber squat may be defined as:
“Cyber squatting occurs when domain names bearing a resemblance to famous trademarks are registered by persons hoping to sell the registration to the corresponding trademark holder. Typically, in such cases, persons who have absolutely nothing to do with the name, virtually pirate the name by obtaining a SLD registration with the .com TLD of a well-known company or brand’’ [1]
The term derives from SQUATTING and refers to the act of reserving a particular internet domain name for the purpose of selling it at higher price later. Common examples of cyber squatting include the reservation of sites that include the names of celebrities or companies.
This guarantees the cyber squatters a profit whenever a celebrity or company decides to set up an official Web site and need that domain this requires registration of a particular domain name and web site under the domain name system (DNS). However, this practice has spawned a new industry in valuable domain names. [2]
Courts on cyber squatting
These practices include the deliberate bad faith registration as domain of well-known trademarks in the hope of being able to sell the domain to the owners of those marks (or rivals owners) or simply to take unfair advantage of the reputation attached to those marks. In technical parlance, this is called cyber squatting.
Thus involves the use of domain name by a person with neither trademark registration nor any inherent rights to the name so, what is the magnitude of the present day problem cyber squatting?
It would be a futile attempt to encompass the ever-increasing magnitude of cyber-squatting, but a bare reference to a few cases, highlights possible abuse and commercial nuisance generated by cyber squatting: -
1) Probably the first reported Indian case is Yahoo! Inc. v. AKASH ARORA [3] wherein the plaintiff, who is the registered owner of the domain name "yahoo.com" succeeded in obtaining an interim order restraining the defendants and agents from dealing in service or goods on the Internet or otherwise under the domain name "yahooindia.com" or any other trademark/ domain name which is deceptively similar to the plaintiff's trademark "Yahoo".
2) In Rediff Communications LTD, v Cyberbooth [4] plaintiff, the owner of the well-known portal and domain name rediff.com filled for injunction against the defendant, registrant of the domain name "rediff .com". There was a common field of activity and the judge was satisfied that there was a 'clear intention to deceive' and granted interim relief to the plaintiff. The judge stated, "A domain name is more than an Internet address and is entitled to the equal protection of trademark."
Although, as on the date of writing, there are very few reported judgments in our country, newspaper reports and information from reliable sources indicate that there are at least twenty-five disputes pertaining to domain names pending before the Delhi High Court itself.
3) In, other case [5] the defendant registered the domain name "tanishq.com". The plaintiff Company, which has been using the trade mark "tanishq" with respect to watches manufactured by it, sued for passing off and alleged that the use of the domain name by the defendants would lead to confusion and deception and damages the goodwill and reputation of the plaintiffs. The Delhi High Court has granted an ex-parte ad-interim injunction restraining the defendants for using the name "TANISHQ" on the Internet or otherwise and from committing any other act as is likely to lead to passing off of the business and goods of the defendants as the business and goods of the plaintiff.
4) In Marks & Spencer PLC vs. One in a Million [6] , the High Court of Justice, Chancery Division, enjoined the activities of two cyber dealers and their related companies, who had obtained and were offering for sale or "hire", numerous domain names containing well known marks. In this group of cases, the Court enjoined "the threat of passing of" (a threat which would become a reality if an offending domain name was sold to and used by a stranger to the trademark owner), issuing a warning to cyber squatters:
"Any person who deliberately registers a domain name on account of its similarity to the name, brand name or trademark of an unconnected commercial organization must expect to find himself on the receiving end of an injunction to restrain the threat of passing off, and the injunction will be in terms which will make the domain name commercially useless to the dealer” [7]
WHEREIN LIES THE Solution to CYBER -
SQUATTING?
Cyber squatting is undoubtedly the most contentious issue in cyber law area throughout the world. But wherein lays the solution? In India in the absence of requisite cyber laws to prevent cyber squatting, the cases involving cyber squatting is decided under the relevant provision of trademark laws. In UK, if someone has registered a domain name incorporating a trademark, then the domain name holder could be in breach of [8] that states “a person infringes a registered trademark if he uses identical or similar to the registered trademark in relation to identical or similar goods or services".
COULD CYBER- SQUATTING BE RESOLVE?
Recognizing the problems raised by clash between domain name system and trademarks, the World Intellectual Property Organization (WIPO) Arbitration and Mediation Centre is developing an online Internet based system for administering commercial disputes involving intellectual property.
In the lines of the final WIPO report of internet domain name possess, the policy to which all domain name registrations now adhere, is one, which attempts to bring about the settlement of in domain name disputes. A statistical examination of Domain Name conflicts reveals that website proprietors gain access to property rights to which they would otherwise not be entitled to under traditional notions of intellectual property rights. There are cases where the conflict between the domain name and trademark systems is irreconcilable where both the parties act in goods faith. It is increasingly clear is due to the global nature of Internet any policy in order to be effective must also be uniformly accepted and enforced worldwide. In the wake of 21st century all countries must join hands to curb this international problem or else - face the RIS
Conclusion
After analyzing the concept of cyber-squatting, it can be said the question whether cyber squatting would amount to either a trademark infringement or a passing off is going to pose real challenges to both the Bench and the Bar alike in India. As the said issue has not been finally decided yet, much can be said on both the sides.
It can be argued in favor of the cyber squatters that the domain name registration system itself is flawed. When one is legitimately entitled to register a domain name, why should he be penalized if he seeks to trade in it? Making easy money in itself is not a crime. From the legal angle, it can be contended that a cyber squatter does not deal in any goods and hence, his activities are not likely to cause confusion in the minds of the public. Such being the case, it would be difficult to place cyber squatting within the realm of passing off, leave alone trademark infringement.
The development may not be healthy because, although the intention of the Court may be to discourage cyber squatting and curb a social evil, it may result in dangerous precedents, where even genuine registrants of domain names may be adversely affected. The Electronic Commerce Bill, which has been tabled before the Indian Parliament, does not deal with the issue of cyber squatting.
The imperative need of the hour is therefore for the legislature to catch up with the technical developments and pass a separate law prohibiting cyber squatting or any other malafide registration of a domain name.
Hence, it is up to legislature to decide the fortune of cyber squatting and take speedy action to curb this virus embraced crime, otherwise what the result will be nobody, even cyber law experts don’t know.
References
[1] Menhard- Francha Roffe, “Internet Issues: Pirates- Censors- and Cybersquatt”.
[2] Wendlandt, Sabine ,” Cyber squatting, Metatags und Spam: Gemeinsamkeiten und Gegens? T ze.”
[4] 1999 (2) AD (Del) 229Attention:
[5] (AIR 2000 Bom 27),
[6] Titan Industries Ltd. vs. Prashant Kooapati
[7] ibid
[8] Section 10 of the Trademark Act, 1994
by:
Aditi Sambhar Jamia millia islamia