Cybersquatters increase in India

Yes you read the title right. Cybersquatters have probably increased in India if the statistics of World Intellectual Property Organization are only to go by.

 

Cybersquatting or domain name registrations with malicious intent has been a problem of the cyberspace for quite a long time now. The WIPO Arbitration Panels have been dealing with thousands of international domain name disputes with involved parties being from varied legal jurisdictions. Cybersquatting has also been a concern for Indian businesses as several “bad faith” registrations have occurred over the last eight or nine years but the Indian courts have in most occasions thwarted the illicit intentions of the registrant. Even the Hon’ble Supreme Court of India has delivered its first and only cyber law judgement in 2004 in the landmark domain name dispute case of  Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd.wherein it was held that domain names should be accorded similar protection as those available to trademarks under the Indian trademark laws. There have been plenty of such cybersquatting cases across India and some of the most notable ones include Yahoo Inc. v. Akash Arora & Anr. in 1999, Rediff Communication Ltd. v. Cyberbooth & Anr. (famous as the Rediff Radiff dispute) in 2000, Dr. Reddy’s Laboratories Ltd. v. Manu Kosuri in 2001, Info Edge (India) Pvt. Ltd. & Anr. v. Shailesh Gupta & Anr. (famous as the Naukri.com & Naukari.com dispute) in 2002 among many others. The effective response of the Indian courts against cybersquatters has prompted trademark owners to report malicious registrations and accordingly redress their grievances quickly in the courts. Where Indian complainants have failed to find an Indian court of competent jurisdiction they have effectively approached the WIPO to beat domain abusers to a meek surrender. It may not be known by many but India’s first case on cybersquatting to be decided by a WIPO Panel was the complaint brought by Bennett Coleman & Co. Ltd. (publisher of the popular news publications “The Economic Times” and “The Times of India”) against Steven S. Lalwani to challenge the latter’s “bad faith” registration of domain names including “theeconomictimes.com” and “thetimesofindia.com” to take online advantage of the reputation and goodwill of both the renowned publications. Ultimately Bennett Coleman & Co. Ltd. won and the infringing domain names were transferred to them. Since then WIPO has received several complaints from Indian trademark owners who have chosen to fight domain name abusers and infringers by approaching the Panel to effect the appropriate domain transfers.

 

WIPO statistics reveal that it had received as many as 45 complaints from India in 2000 regarding “bad faith” domain registrations made by potential cybersquatters. Over the last 9 years the number of complaints have definitely reduced to as little as 17* in 2008 and the overall total complaints received at WIPO from Indian complainants since 2000 stands at 148*. But an alarming reverse trend has been the number of cybersquatting complaints made against registrants from India. The number of complaints against Indian registrants has steadily increased since 2000 and in 2008 as many as 64* complaints (highest since 2000) were registered against Indian entities for having allegedly made “bad faith” registrations. The total number of complaints received at WIPO against Indian registrants since 2000 stands at a surprising 237*. This reverse trend coming out in cybersquatting as far as Indian registrants are concerned (if WIPO statistics are only to go by) has triggered a possible opinion that the number of the so-called “cybersquatters” are perhaps emerging more within the country. And very recently Google (one of the most popular Internet companies in the world) complained to the WIPO against two Indian entities for malicious “bad faith” domain registrations. WIPO found bad faith and deceptive usage on the part of both the Indian entities to confuse Internet users and accordingly transferred the domain names “googlehrd.com” and “mygooglemoney.com” used by Kolkata-based Ascio Technologies Inc and Net Jobs of Rajasthan to Google.

 

However despite the evidence provided above, the overall opinion that “cybersquatters are increasing in India” could be a little over simplistic just because of the fact that the statistics incorporated are the ones only reported in WIPO, however the examination and analysis of also the cases registered in Indian courts on domain disputes in the recent years would probably give us a more balanced view of whether the “cybersquatters” have increased in India or whether the cybersquatting incidents targeting Indian trademark owners have also accordingly increased by a large proportion thus rendering the opinion a little too biased and imbalanced. Another factor that needs to be incorporated and evaluated in the present context is that there is also a large increase in the number of domain name registrations being made by Indian registrants. With Internet usage (including broadband availability) increasing dramatically over the last few years and more businesses choosing to adopt an online presence, it will be easier to state that the statistics seem to be swaying one way because of the definite increase of registrations in India.

 

Irrespective of whatever the final report is in this debate about the numbers related to “Cybersquatters v. Victim Trademark Owners” in India, the obvious point is that cybersquatting (domain name disputes) are here to stay and intellectual property owners in India need to be even more vigilant to ensure that their valuable and expensive IP is not being easily infringed upon and maliciously exploited in the virtual world. To make matters worse, cyber abusers of IP are not just limiting themselves to domain registrations but are also trying to misuse online platforms like “keyword linked advertising” to direct unsuspecting traffic towards their deceptively similar online destinations.

 

– Misum Hossain,  Global School of Tech Juris

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Email Virus ratio highest in India

Email viruses are increasing alarmingly in India. According to Messagelabs Intelligence Reports, global ratio of email-borne viruses in email traffic seem to be getting less intense as compared to the statistics available since 2005.  The February 2009 global ratio indicates that 1 in 304.9 emails (0.33%) are spam mails which is roughly a decrease of 0.06% since January 2009 and if compared to the 2005 stats the situation seems much better as the global ratio then was at an alarming rate of 1 in 12.9 emails being spam mails. However the news is not all that good for Indian cyber users considering the results of the virus rate charts for worst affected geographical locations published by Messagelabs Report for February 2009. Virus activity in India reportedly has arisen by 0.16% amounting to 1 in 197.4 emails thus catapulting India to the No. 1 position for most virus activity in the world for the month of February 2009. The Report puts Germany, United Kingdom, Canada and Hong Kong behind India as the Top 5 Geographies for virus rates globally.

 

This is concerning news for online users in India where the country’s Internet population is growing at a rapid rate with broadband Internet reaching large populations and Internet Service Providers coming out with more economic and affordable tariffs. World statistics on Internet usage (Internetworldstats) for 2008 suggest that India is No. 4 among the Top 20 Countries for highest number of Internet users. China, USA and Japan occupy the first three positions respectively in the table.

 

With spammers and virus originators targeting the Indian cyberspace more than ever before it needs to be seen how the recent changes in the cyber laws of the country help fight this growing menace. The Information Technology Act amendments, although has supporters and detractors on equal measure, is yet to be notified and only time will tell whether the current Indian cyber laws help deter this alarming influx of spam and viruses into the country.

 

There is  no question however that Internet population in the country is only going to grow larger and hence awareness about cyber security, privacy and laws for Internet users need to be highly prioritised. With knowledge about cyber crime prevention and data protection made more readily available, cyber users in the country will probably get more equipped to counter modern abuses like phishing, spam, advance fee frauds, malware attacks and other cyber scams operating extensively on the web.

Basic Cyber Law training for all Lawyers!

I often see many online articles and comments that identify “cyber laws” as a new area of practice for legal professionals in India. I see a number of young professionals or law graduates also seeking to enter the profession primarily only as “cyber lawyers” and hence looking to equip themselves accordingly with additional courses and skills based training programs. Although I am happy to find so many young and budding law graduates wishing to enter the profession exclusively as “cyber lawyers”, I am unfortunately being the one to break this news that if anyone is looking to specialize in cyber laws, it is not just command over cyber laws that one must exercise but equally be conversant and skillful with other areas of law including intellectual property, contract, criminal, company etc. as no cyber lawyer can function with simply knowledge about just the cyber laws. I come from a school of thought that you need to be a lawyer first and then only subsequently look to specialize. What I mean is that law graduates must inculcate knowledge and understanding of most laws rather than see specialised practice as being isolated fields.

 

But what about the thousands of other lawyers or law graduates who do not wish to specialize or work in the area of cyber laws and who have chosen equally good career specializations in either corporate or even in litigation practice. Maxim Gorky, founder of Soviet Literature, once said “Every new time will give its own law”. As for me today is the time of information technology and hence the time for cyber laws. Technology has reached much deeper into our existence than we perhaps realise. The society today is surviving on “information” as a society without an inflow or outflow of information will find it difficult to exist, compete or evolve and will end up as a pariah and maybe even extinct (if not physically) but definitely in the mental sense. This continuous and tremendous urge for information is satiated by the various forms of technology that help in transmitting what we so eagerly desire – “information”. With IT and its various tools having intertwined into our very existence, we live in a society today which is technology driven and technology dependent. Hence it is impossible to envisage our lives in the absence of technology.  But as technology has its advantages and uses, it has its banes and abuses as well. And if technology is so deeply rooted in our very existence, the presence of all other structures that govern our society must also find a way to incorporate “technology” within their realms. The legal parameters and ideologies of any society is based on its social experience and if it is a technology driven and dependent society we live in today, then our laws must also be formulated to adapt to the evolution. Cyber laws hence should not be perceived as an isolated area of practice but more as a holistic standard that should be used to provide answers and solutions to our modern day legal issues. With this tremendous influx of technology and its tools in our daily lives, it will no longer be possible to work well in any profession that would choose to stay ignorant of the impact that technology brings with it. Many law colleges and universities across the country have already realised the significance of technology laws and have hence chosen to incorporate “cyber laws” as part of the standard curriculum either as mandatory or even optional subject. Thankfully a knowledge revolution with regards to cyber laws awareness seems to have been initiated in some parts of the country. But what about the lawyers who have graduated with their degrees quite some time back and are looking to compete with the new age tech savvy breed emerging from prestigious academic institutions. Some of them have suggested that they have experience to count on and their lack of knowledge in this new phenomenon will not attribute to any lack of success. Maybe they are correct or maybe not. But as we see this tremendous transformation towards the digital space, it is only a matter of time before everyone needs to be aware of the hitherto unfathomable cyber laws.

 

The solution lies in concerted efforts made to improve the knowledge and skills of all lawyers, experienced and young. And the solution must also be a cost effective one to ensure that economic barriers do not end up conflicting with a noble cause of improving learning about a new and evolving area of law. I am quite proud to state that such a pioneering “Basic Cyber Law Training For Lawyers” program has been conceptualised and created at Global School of Tech Juris which will be the first of its kind program to help lawyers understand, inculcate and build up a greater knowledge base about what cyber law is and how it works. The proposed classroom program has already received a large number of enquiries for its inaugural academic semester and it is already predicted that this program designed exclusively for legal professionals will be a definite path breaking movement that many others are bound to follow. Note that Global School of Tech Juris already has a Certificate Program in Cyber Laws (6-months) available in both classroom and distance modes, but the proposed “Basic Cyber Law Training For Lawyers” program will be solely and exclusively to help increase the knowledge and understanding of practicing lawyers.

Domain names – Corporate Assets?

It has been long considered by businesses as well as declared in courts across various jurisdictions by adjudicating authorities that some “domain names” can indeed become part of the corporate assets and they, like any other property (e.g logos, symbols, brand names etc.), can also assume trademark like qualities thus capable of either being registered as a “trademark” or if unregistered being protected as a proprietary mark by the law of passing off. A domain name, which is not usually generic in nature, and contains with it some attributable reputation or goodwill regarding either the service or a product provided by the domain owner or represents a certain level of assurance or credibility about the brand to the wider audience, attains “trademark” like qualities and hence it is widely accepted that domain names can, considering some requirements are fulfilled, become almost like a “corporate asset”.

 

Whether it is the WIPO Panel acting under the UDRP Policy (adopted by ICANN) to adjudicate international domain disputes or even national courts with competent jurisdiction judging on such matters, it has been well settled that corporate entities registering domain names containing the “mark” or “brand” of their business would inadvertently end up attributing the trademark qualities to even the registered domain name. For example when Microsoft as one of the most popular brands in information technology launches a portal with a domain name including the term “Microsoft”, the domain name undoubtedly ends up inheriting the intellectual property rights that the term “Microsoft” already had been bestowed with. And in some instances where a corporate team invents a word and then uses it as part of the domain name, it might also be that the domain name becomes a “brand” only after the website that the  URL (containing the domain name) point to ends up becoming popular. For example “Rediff” is an invented term coined by its backing corporate team but the reputation and goodwill attributed to it emanates primarily from the services and products that Rediff has been providing on its portal. Rediff has significant popularity among the Indian online email users as well as IM service users. So “rediff.com” would not necessarily have trademark like qualities on the day it is registered but over a period of time (as is the case here) ends up having tremendous value and IP rights thus ensuring that anyone who tries to abuse these rights by choosing a deceptively similar domain name ends up becoming an infringer.

So it is well settled that “domain names” can well be corporate assets. But the question that seems to be doing the rounds in some corner of my head is a little strange and fictional. Domain names are technically speaking “registration agreements” with the accredited Registrar which provides the domain registrant the rights over the domain name for a period of 12 (twelve) months. As is everyone aware the rights can be renewed and extended for a further period of 12 months subsequent to the payment of the registration fee and this process can be perpetually repeated to ensure the registration does not change hands. The question that I wish to explore is that if domain name registrations are mere license agreements to use the domain name for a period of 12 months does it not make it more like a leave and license agreement? If domain name registrations are mere leave and license agreements, can domain names qualify as “corporate assets”? Is it not true that technically a domain name owner is not really its owner but only a registrant? Of course I will see many opposing views and comments here as the concept of domain names as corporate assets has been well established and enshrined in the laws of many countries but it is always worth reviewing the question when the answer is all too well known. Does it not give it a fresh perspective?

Come on bloggers, start writing! I am all ears for your views.

– Misum Hossain

Global School of Tech Juris

Cyber Civil Liabilities in Eastern India

It has been almost eight and a half years since the inception of  the Indian cyber laws in the form of “The Information Technology Act, 2000” but the implementation or use of the statute’s provisions related to cyber civil liabilities seems to have never even been considered significant enough whether by individual clients or even corporate entities in the eastern part of India (specifically Kolkata). Ordinary civil courts are barred from having any jurisdiction in matters pertaining to The IT Act thereby making the roles of the Adjudicating Officer as well as the Cyber Tribunal (Delhi) much more emphatic. However unfortunately, the city of Kolkata has hardly seen any matters reaching the Adjudicating Officer.

 

The IT Act enumerates the various civil liabilities under Chapter IX of the statute including provisions related to unauthorized access, introduction of contaminants, copying, downloading, damage, disruption, denial of access and provides the possibility of the victim receiving a maximum compensation of upto Rs. One Crore. It is strangely surprising that a major city like Kolkata has hardly got any matters registered with the Adjudicating Officer and if records are to go by, currently there seems to be not even a single matter before the AO. This may lead many to come to the hasty conclusion that cyber crimes have not reached the cyber horizon of the city’s large database of Internet users, but this would be an erroneous assessment if only relied upon records.

 

The fact is Kolkata does have its fair share of cyber crimes and abuse and Cyber Crime Cells of the city are having to investigate several matters as we speak. But what needs to be realised is that perhaps the existence of the cyber civil liabilities provides an easier opportunity for victims to get compensation as the “Penalties” provisions completely undermine the requirement of any knowledge or intention. Thus the occurence of any event as described under the various sub-sections of Section 43 would prima facie entitle the victim to a possible compensation, although the said is entirely dependent on the Adjudicating Officer who has to assess the compensation on various factors as mentioned in the statute. The civil liability provisions should be seen as a convenient redressal opportunity for those city businesses who seem to get periodically affected by nuisances such as cyber trespass or unauthorised access, introduction of malicious programs, damages or disruption to computers, access denial instances and such other scenarios. The forum is available for them to approach and try for a legitimate compensation under the Act, however unfortunately this forum continues to be ignored and undermined. It is not that the city’s young breed of professionals are not aware of cyber laws and such related provisions as my personal experience tells me that a large number of the young graduates today are cyber savvy and more aware bout technology related laws than many give them credit for. Although a very personal opinion, but I can argue that the city’s lack of cyber civil matters owes more to the lack of awareness among victims of the available grievance redressal forum that exists for them to easily access.

Being the promoter and supporter of cyber laws in Kolkata, I hope that I will be able to actively bring this issue up for discussions on important platforms including symposiums, conferences and workshops that will be hosted by Global School of Tech Juris in the near future. I am certain that the right amount of awareness among the city netizens will bring about a positive change thus opening the doors to cyber civil matters which will ensure that citizens are not only able to use this forum to redress their grievances but also that the budding legal professionals will be able to give this area a serious thought.

Whois Records in Courts

A major reference point for domain name ownership seems to always be the WHOIS records maintained by Registrars independently. There have been instances when these records have been used as legitimate proof to validate ownership of disputed domain names in many courts. However these records never existed for the purpose of it being admissible in a court of law simply because of the reason that these records are not verified or checked and hence their authenticity will always be questionable. Some schools of thought support a validated and verifiable Whois database so that such records are authentic and hence admissible as evidence, while those advocating privacy seem to argue that Whois records are increasingly being scoured by spammers to retrieve personal information about domain name registrants to send unsolicited communications and in many cases even rendering the registrants vulnerable to various cyber scams. Hence a valid Whois record with legitimate email addresses, postal addresses and telephone numbers might well be a treasure trove for spammers and cyber scammers prowling the cyberspace to net an innocent victim. While juxtaposed with the privacy argument is the simple rule that decisions should be made in the greater “public interest” and if a Whois record is verifiable and reliable (hence admissible in courts), the database of Whois information will become an important legal record with significant ramifications in its admissibility as evidence in a court of law. Similarly websites set up to dupe innocent netizens can then be shut down and miscreants brought to justice easily if their personal information is available on the Whois records (of course if only the Whois database requires a validation or authentication process otherwise there is no point). Opinions continue to be divided in this battle between individual privacy vs. public interest. Although there is an important distinction that must be made between Whois records maintained by independent Registrars for generic top level domains against those maintained strictly scrutinised by some national (almost government controlled) Registrars for their own country code (cc) top level domains. These records are often more strictly managed and regulated by those national ccTLD Registrars and hence the admissibility of the same seem to be upheld by their national courts.

It will be interesting to however see the development of jurisprudence regarding the validity of Whois records in domain name disputes that reach Indian courts and if the courts are required to adjudicate on the validity of the records in question.