Domain Name Protection Law In India Needed

Domain names have assumed great significance these days. This is also the reason why many individuals and organisations have shown great interest in the new generic top level domains launched by Internet Corporation for Assigned Names and Numbers (ICANN). However, a domain name, new GTLDs and dispute resolution is not an easy task to manage.

In India we have another problem to address. We have no dedicated domain name protection law in India. Domain name protection in India is still provided under the trademark law of India. This is a serious flaw as domain names are essential part of commercial activities, e-governance and e-commerce infrastructure and we have no law that addresses violations committed against domain names.

If we continue to redress domain name violations under the existing trademark law, it may be counter productive in the long run. Of course, we use alternative dispute resolution (ADR) mechanism like arbitration to resolve domain name disputes out of the court. Surprisingly, online dispute resolution (ODR) in India has still not been considered to resolve domain name disputes on large scale in India.

The importance of domain names and corresponding stake there under have further increased due to the recent announcement of ICANN to register new generic top level domains (GTLDs). In fact, ICANN’s new generic top level domain names (new GTLDs) registration has begun and is in progress.

Perry4Law and Perry4Law Techno Legal Base (PTLB) recommend that the new GTLD applicants must undertake due diligence before applying for the same. A risks and benefit analysis of ICANN’s new GTLDs registrations must be made by individuals and companies alike.

In particular, the applicants must make a techno legal analysis, new GTLDs due diligence, anticipate possible legal rights objections under ICANN's new GTLD program, etc. The legal issues of new GTLDs application, their registration and subsequent litigations would surface and a sound strategy in this regard can help in minimising the legal risks associated with the same.

Even after the application period for new GTLDs would be over, there is no guarantee that legal and other objections would not be raised. It is recommended by Perry4Law and PTLB to formulate a good techno legal strategy by the new GTLDs applicants for successful registration of new GTLDs in their names.

Further, we also recommend that Indian government must start the legislative process of enacting a dedicated domain name protection law for India. The sooner it is done the better it would be for the larger interest of all stakeholders.

ICANN’s New GTLDs Registration Application Filing And Due Diligence Services

Internet Corporation for Assigned Names and Numbers (ICANN) has recently approved allotment of new generic top level domain names (new gTLDs). This is good news for brand and trademark owners who can now register their brands and trademarks as the gTLDs.

While this is good news yet this decision of ICANN is not free from troubles and unforeseen challenges. Even the filing of a gTLD application would not be an easy task and would require techno legal expertise.

ICANN has already laid down stringent conditions for the acceptance of an application for registration of new gTLD as per its Applicant Guidebook. Even the US $ 1, 85,000 costs for filling an application for new gTLD would keep out non serious and middle sized companies from applying for a gTLD.

However, this high cost is not a “guarantee” that the application would be accepted by mere filing. ICANN has clearly said that only “bonfide applicants” would be allotted the applied gTLD. The gTLD application would be minutely scrutinised before allowing the same.

Here lies the importance of a “gTLD due diligence service” that analysis the possibilities of allotment of the proposed gTLD. At Perry4Law and Perry4Law Techno Legal Base (PTLB) we specialise in techno legal issues including domain name registration and domain name dispute resolution services.

Further, with an increase in new gTLDs registrations, issues like domain names protection, brands protection, trademarks protection, cybersquatting disputes resolution, cyber law compliances, cyber security requirements, cyber due diligence, etc would also arise. Brand owners and trademark owners must prepare their “strategy” in this regard well in advance.

The new gTLDs application process would start from 12 January 2012 to 12 April 2012. Brand owners and trademark owners need to ensure “due diligence” in this regard as soon as possible as that would give them additional time to ensure that their applications are accepted.

ICANN 41 Is More Than A GTLD Meeting

The Internet Corporation for Assigned Names and Numbers (ICANN) would hold the Second Public Meeting of the year on 20th June 2011 at Singapore. One of the issues that would be discussed by ICANN there pertains to introduce an unlimited number of new Generic Top-Level Domain Names (GTLDs).

However, this is not the only issue that would be discussed at that meeting. Despite contrary claims, ICANN would also discuss many more “Crucial Issues”. For instance, ICANN’s Board of Directors would vote on whether to finalise the Applicant Guidebook, a 348-page document that explains how any established Institution (such as a Government, Business, or Non-Profit Organisation (NGO)) can apply to operate a Generic Top-Level Domain Names (GTLD) of its own choosing. If the Board approves the Guidebook as final, the process of issuing new GTLDs would start.

ICANN would also consider other crucial issues like Internationalised Domain Names (IDNs), Inter-Registrar Transfers, New gTLD Applicants from Developing Countries, etc. These are just a few examples of dozens of topics that the ICANN Community will discuss during a week containing more than 120 panels, presentations, workshops and other sessions.

However, some of the issues deserve an “Indepth Analysis”. These proposals have far reaching consequences for Domain Name, Brands holders, Trademark owners and even for International Organisations like ICANN and World Intellectual Property Organisation (WIPO). This decision would give a new meaning to Domain Names Protection, Brands Protection, Trademarks Protection, Cybersquatting Disputes Resolution, Cyber Law Compliances, Cyber Security requirements, Cyber Due Diligence, etc.

Further, these changes would also require “Better Dispute Resolution Mechanisms” than the existing ones. For instance, transfer-related issues are the number one area of complaint according to data from ICANN Compliance. Should there be a process or special provisions for the urgent return of a hijacked domain name? The GNSO Council votes on the issue Wednesday and in all probability it would be answered in affirmative.

Naturally, these GTLDs are in great demand and there would be attempts to squat famous Brands and Trademarks of others. ICANN should stringently deal with such attempts by allotting the GTLDs to only “Bonafide Applicants” after verifying their “Claims”. The traditional Domain names are frequently hijacked and Cyber Squatting cases have increased dramatically.

The present allotment of GTLD would also face similar problems if an effective “Pre Screening Procedure” along with “Reasonably High Application Fee” is not prescribed by ICANN. ICANN and WIPO would also be required to “Streamline” their Dispute Resolution Services keeping in mind the recent Technological Advances and changing nature of “Cyber Squatting Dispute Resolution Mechanism”.

However, the “High Cost” and “Bonafide Claim” issues would take us to another burning issue pertains to the “Capability” of Developing Countries and NGOs to apply for GTLDs. If the Board approves the “Expensive Process” for creating new GTLDs, Developing Countries may not be able to get the maximum benefit out of it.

Developing Countries may have a need for a new GTLD, but lack the “Financial Resources” to apply for and operate it would be a big hurdle. A Working Group comprised of members from ICANN Supporting Organisations and Advisory Committees has been considering how such groups might be funded if they apply for a GTLD/TLD. The Group offers a report on Thursday.