Context: An app developer from Delhi has created a ripple on social media after he registered the JioHotstar domain before the recently announced merger between JioCinema and Disney+Hotstar. The developer attempted to sell the domain to Reliance Industries in exchange for them funding his education abroad. However, his actions invite a potential legal action against him from Reliance industries under cybersquatting.
What is cybersquatting?
Cybersquatting is a practice where the perpetrator buys or registers a domain name that is identical to a brand (recognisable trademark), company name, or personal name in order to profit from them.
Cybersquatting is a form of cybercrime because of the bad faith intent of the squatter. Due to its nature, domain squatting can be considered a form of trademark infringement.
Types of cybersquatting:
- Typosquatting: Typosquatting (a.k.a URL hijacking) targets Internet users who enter a website address incorrectly into their browser. It is the practice of profiting from possible typing errors, for example, typing “Raddif.com” instead of “Reddif.com.”
- Identity Theft: Identity theft describes crimes where someone unlawfully obtains and uses another individual’s private data to involve deception or fraud, usually for financial gain. For example, cybersquatters may buy a domain that was inadvertently not renewed by the previous owner.
- Cybersquatters purchase the expired domain and create clone websites of the previous domain owners.
- Unsuspecting website visitors are deceived into trusting these fake websites, falsely believing they are accessing the original owner's site. This may lead to potential fraud to the user or to the original company.
- Name Jacking: Namejacking involves registration of a domain name associated with names of notable individuals (usually celebrities) to create fake websites or social media profiles. Name jackers profit from web traffic related to the individuals being targeted.
- Reverse Cybersquatting: Reverse cybersquatting occurs when a trademark owner falsely accuses a domain name's rightful owner of cybersquatting. This tactic aims to intimidate legit domain owners, especially smaller organisations or individuals, to transfer their legitimate ownership of a domain name to avoid legal costs. This practice is often employed by large corporations.
Laws related to cybersquatting in India:
There is no separate/exclusive law to deal with the cases of cybersquatting in India. The cases are dealt under the Trademarks Act, 1999 and the Information Technology Act, 2000.
- Remedy of infringement: Under the Trademarks Act of 1999, the remedy of infringement is available to the owner of the trademark, only when the trademark is registered. (In the case above, Jio is a registered trademark of Reliance Industries). The aggrieved party may file a lawsuit in an Indian court on the ground of trademark infringement and assert their rights.
- Dispute resolution under Uniform Dispute Resolution Policy (UDRP):
- In India, domain disputes like cybersquatting can also be resolved through the Uniform Domain-Name Dispute-Resolution Policy (UDRP) arbitration, managed by World Intellectual Property Organization (WIPO). (India is a member of WIPO)
- Indian individuals or businesses can file a UDRP complaint, if a domain name is similar to a trademark in which the complainant holds rights. The UDRP arbitration process provides quick, cost-effective dispute resolution without needing court intervention.
- If the complainant can prove bad faith registration and usage of the domain, the domain name can be transferred to them. However, either party, if unsatisfied, has the right to challenge the outcome of UDRP arbitration in an Indian Court.
- Remedy under Information Technology Act, 2000 and Indian Penal Code of 1860:
- Section 66 of the Information Technology Act, 2000: Section 66 addresses dishonest or fraudulent activities involving computer systems. It penalises anyone who commits any act referred to in Section 43 (e.g., unauthorised access, data damage) dishonestly or fraudulently. Penalties include imprisonment for a term up to three years, a fine up to five lakh rupees, or both.
- Forgery under Section 469 of the IPC: A person found forging with the intent to harm the reputation of any party, or knowing that the document forged will be used for that purpose, shall be punished with imprisonment of either description for a term that may extend to three years, as well as a fine.