In the case of domain names, registration is on a first come first serve basis and the one who owns the registration becomes the first owner. Due to this practice of registering a similar domain name, individuals try to get domain name registrations of well-known brands to lure the customers to the website and cause losses to the rightful owner of the brand. They later try to use such domains (parked domains) as leverage and attempt to extort money out of the rightful owner. In other words, these people just register the domain name without any intention to use it for any business purpose and later try to sell it back to the rightful brand owner at an exorbitant price. This practice is known as cyber-squatting.
In case the domain name is registered in India with a country code .in, the Registrant has to proceed according to INDRP. INDRP is essentially similar to UDRP. Any person whose legitimate rights and interests are in conflict with any domain name registered by the .IN Registry can file a complaint under INDRP. The grounds to initiate the complaint are the same as laid down in Paragraph 4 of the UDRP. These conditions are:
(a) The Registrant’s domain name is identical and/or confusingly similar to a name, trademark or service mark in which the Complainant has rights; and
(b) The Registrant has no rights or legitimate interests in respect of the domain name; and
(c) The Registrant’s domain name has been registered or is being used in bad faith.
Paragraph 6 lays down the conditions to prove the Registrant’s rights and legitimate interest in the domain name. These are:
Any of the following circumstances, in particular but without limitation, if found by the Arbitrator to be proved based on its evaluation of all evidence presented, shall demonstrate the Registrant’s rights to or legitimate interests in the domain name for the purposes of Clause 4 (b) :
(a) Before any notice to the Registrant of the dispute, the Registrant’s use of, or demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(b) The Registrant (as an individual, business, or other organization) has been commonly known by the domain name, even if the Registrant has acquired no trademark or service mark rights; or
(c) 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 lays down a condition to prove the existence of bad faith registration which is same as laid down in the paragraph 4(b) of UDRP. The INDRP Rules of Procedure for Dispute Resolution makes it mandatory for the Registrant to submit to an arbitration proceeding if the Complainant approaches the .IN Registry. The .IN Registry is operated by the National Internet Exchange of India (NIXI).
After the complaint is filed, the .IN Registry appoints an Arbitrator from the list of Arbitrators it maintains. These proceedings not only take place in accordance with the policy and the rules of procedure but also according to the provisions of the Arbitration and Conciliation Act, 1996. The arbitrators are also required to impose costs if deemed fit. The Registry and the Registrar are not allowed to participate in any matter related to cancellation or transfer of domain name and are also not liable to the decision rendered by the arbitrator. During the pendency of court proceedings or arbitration proceedings (unless the party to whom the domain name is being transferred agrees in writing to be bound by the decision) and till 15 working days after the conclusion of the proceedings, the Registrar is prohibited to transfer the domain name to the new holder.
The rules specify that the arbitral award is passed within 60 days from the commencement of the proceedings which is extendable by 30 days in certain exceptional circumstances. In case the parties reach a settlement before the award is passed, the Arbitrator is required to terminate the Arbitration Proceedings and enter the terms of settlement between the parties as to the decision of the Arbitrator.
The remedies under INDRP are restricted to cancellation or transfer of domain name. Any other remedy such as a permanent injunction or damages is a subject matter of a civil suit which can be initiated by the Complainant in a civil court having competent jurisdiction.
In the case of Adobe Inc. v. Lina, the tribunal was adjudicating upon the domain name www.photoshop.co.in and the Arbitrator relied on the fact that the Respondent did not submit any evidence or argument indicating their relationship with the disputed domain name or any trademark right or contractual right. The domain name was ordered to be transferred to the Complainant.
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