The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
“Domains have and will continue to go up in value faster than any other commodity ever known to man”
-Bill Gates, Founder of Microsoft
Contents hide
4 POSITION OF DOMAIN NAME IN INDIA
5 JUDICIAL INTERPRETATION: INDIAN PERSPECTIVE
The domain name is the address of a website and online identity of an individual or an organization which can be easily identifiable and remembered. It is an online address that leads the internet user to access the website. Every website has an Internet Protocol Address which is series or string of number which is difficult to remember but by registering for domain name one can get an easy and simple name for that IP address which can easily be remembered by humans. The objective of developing a domain name is to make the IP addresses more human-friendly and locate the website easily on the internet.
Domain names are form by the rules and procedure of the domain Name System which contains domain names of websites that humans can understand and remember. Every domain name is unique, a website cannot use a domain name that is already registered. The domain name can be in form of letter or number or a combination of both also it can use the extension like .com, .net, and .in, etc. In India domain names can be grant protection as a trademark under The Trademark Act, 1999.
A trademark is an identification of a source of goods and services it can be in form of words, phrases, symbols, or design. Trademark is define in the Trademark Act, 1999 as, “trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and combination of colours.”
[i]By registering a trademark the owner of the trademark gets the exclusive rights for its use and prohibits anybody from using the same or similar trademark to sell a similar product or services. A trademark of a product or service associates the customer with the company’s ownership of the brand. In India trademark rights are protect under The Trademark Act, 1999 and also can avail the remedy of passing off under common law. The act aims to provide protection to the trademarks and service marks.
Trademark and Domain names both are use to help people to identify a business or product. Both of them are valuable assets and can be protect via registering them with a registrar. Trademark is protect only in that national and international jurisdiction where it is register whereas the domain name as trademarks or service marks gets recognition and protection worldwide if they are register under Internet Corporation for Assigned Names and Numbers (ICANN).
The domain names also get protection from the national trademark law and International Trademark treaties. The Domain Name can get register under ICANN and if any dispute arises it can be resolve by Uniform Domain Name Dispute Resolution Policy (UDNDR). [ii]A domain name does not have to be registered for specific or particular goods or services whereas trademarks are registered for a particular class of goods or services. The process of registering a trademark takes a longer time and more expensive than registering a domain name. Some of the well-known trademarks are Apple, Coca-Cola, Maggi, Adidas, McDonald’s, and Nike, etc. Some examples of the domain name are yahoo.com, sony.com, academy.in etc.
The domain name can be registered and protected as a trademark if it fulfills all the conditions which are necessary for a trademark to get registered and protected[iii]. A domain name should be capable of distinguishing goods or services of one company from other companies and people should able to associate it with concerning goods or services. A domain name to get registered has to be unique so it does not create any confusion in the minds of the people, if it creates confusion concerning any domain name or trademark it could lead to trademark infringement litigation.
The increase in the e-commerce business due to the advancement in technologies has raised the demand for the domain name for the goods or services to provide in online mode. Domain names were developed for the convenience of the customers to remember the name of the website rather than remembering the string of numbers. The advantage offered by registering a domain name is to render protection to the business of good and service from its competitor and their malicious practices. In India, the Trademark Act, 1999 protects the domain name as trademarks or service marks from getting infringed.
In this case, the question before the court was whether the domain name is recognized. As Intellectual Property rights such as Trademark. The Supreme Court of India said that the original aim of developing a domain name. Was to provide an address to the computers on the internet. But due to advancements in technology the internet is not only just a source of communication but also has become a platform for commercial or business activity.
Stating this reason it has become an identifier for a website or a business. That distinguishes one business from other businesses. Therefore, a domain name should be unique as in present times it is used in connection. With a business it becomes necessary for getting an exclusive identity. With an increase in commercial activities on the internet the domain names have gained significant importance.
In this case, the question before the court was of “deceptive similarity” in the website name of the defendant. The plaintiff filed a case against the plaintiff for using the domain name. “Radiff.com” which is similar to the plaintiff‘s trademark “rediff.com”. There was a deceptive similarity where the intention was to deceive the customers and was done in bad faith. A domain name should not have a tendency that can create confusion or deceive the minds of the customer.
In the present case when both the domain names were compare there was a possibility. That the customers can be confuse or deceive and believe that both the names are own. By one person but in reality, it does not. Hence the court granted an injunction order to the defendant to stop using. “Radiff.com” as it is an infringement of the plaintiff’s trademark.
In the era of digitization, the domain name has gained significant importance. Due to an increase in commercial activities and businesses through the internet. In a world full of developed technologies the domain name plays a crucial role. As an identifier and promoter of business on the online platform.
Hence it has become a necessity to grant protection to the domain name trademarks or service marks.
[i] Sec. 2 (zb), The Trade Marks Act, 1999.
[ii] Kenneth Sutherlin Dueker, Note, Trademark law lost in cyberspace. Trademark protection for Internet addresses, Harvard Journal of Law & Technology, 9 ,1996, 483
[iii] Kurt E. Anderson, Registered Trademark v Domain Name, Nation Law Review, Vol. 10, (2020)
[iv] AIR 2004 SC 3540
[v] 1999 (4) Bom CR 278
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