Domain Name Registration Policy

Domain Name Registration Policy

 

I. DOMAIN NAMES INTRODUCTION

The internet revolution has marked the beginning of new age called the "e-age". With the tremendous growth in digital and internet media, the online presence has taken great importance. It is seen as one of the fastest and effective mode of enhancing the public presence. Consumer prefer to do online research about any goods or services which they wish to purchase or avail. Companies market their products through Internet and even sell and accept purchase orders as well. Huge transactions are taking place every day through internet. The plethora of information is just a few clicks away.

DOMAIN NAME

Domain names are the human-friendly forms of an Internet Protocol addresses, and are commonly used to find web sites. A domain name is the online identity of a particular person, establishment or organization. The domain name is the online address of an establishment and leads to the page which the registrant of the domain name wants to be viewed by general public when they visit their Domain. Normally in course of business, traders and companies use their business or trade name as their online Identity or domain name, viz. www.tradename.com. It is a permanent address that can be accessed from anywhere in the world irrespective of the location of the registrant. Thus it gives a global presence to ones online identity.

DOMAIN NAME SYSTEM (DNS)

The domain name system is a system by which the domain names are allocated an Internet Protocol (IP) addresses which a unique address having actual physical location on internet. It can be said that domain name is the alias name of a numeric IP address. Since it is difficult to memorize the numeric address of the website domain name is more user friendly, as the names can be memorized very easily.

TYPES OF DOMAIN NAMES

Top Level Domain (TLD) & Second Level Domain (SLD)

A domain normally consists of two parts i.e. domainname.com, where ".com" is the Top Level Domain and "domainname" is the Second Level Domain

There are three types of TLD's.

1. The most common are gTLD's (generic Top Level Domains), which include .Com, .Net, .Org, .aero (for the entire aviation community), .biz (for business purposes), .coop (for cooperatives), .info (unrestricted), .jobs (for human resources), .museum (for museums), .name (for personal names), .pro (for professionals), .travel (for the global travel community)

2. rTLD's (restricted Top Level Domains) such as .Biz and .US only allow people who meet certain criteria to register domain names.

3. ccTLD's (country code Top Level Domains) such as .in (India) are individually assigned to countries and their dependencies. These ccTLDs are administered independently by nationally designated registration authorities. There are currently 252 ccTLDs reflected in the database of the Internet Assigned Numbers Authority

Registrar and Registrant of Domain name:

A person registering a domain name is called the registrant or the owner of domain name. And the agency which registers the said domain name is called registrar. All the domain names are registered with domain name registrars. There are number of Agencies called Domain Name Registrars which are authorized by the governing bodies to register a domain name and keep a track of all information like renewal, transfer and address details of the registrant in respect of Domain name.

All such data about relating to registration of a domain name is available in the WHOIS record of the domain.

 

II. DOMAIN NAME DISPUTES

On one hand while domain names enable users to locate computers (and people) in an easy manner, domain names have acquired a further significance as business identifiers and, as such fall into category of intellectual property rights.

Domain name disputes largely comprise of cybersquatting, which means registration of someone's trademark/business name / trade name by third parties as domain names. Since the domain names are registered on first come first serve basis and need no prior approval from any authority about the proprietary rights over the trade name. Which means any person can register a domain name without showing ownership of the trademark/name used n the domain name (however popular it may be). Thus Cybersquatters exploit this rule of the domain name registration system and register names of trademarks, business name or tradenames etc. without having any proprietary rights over said trade marks and names. As the owners of said domain names, cybersquatters deal in sale and actions of said names or use the same to divert the internet traffic and earn by pay per click sponsored advertisements.

Domain name disputes with respect to GTLDs are subject to the Uniform Domain Name Dispute Resolution Policy (UDRP). Further ccTLD disputes are subject to country specific dispute resolution policy. For India, i.e domain names having .in or .co.in extensions the disputes are subject to INDRP (.IN Domain Dispute Resolution Policy)

1. A. Uniform Domain Name Dispute Resolution Policy (UDRP)

The Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 adopted the Uniform Domain Name Dispute Resolution Policy (UDRP) based on recommendations made by WIPO. Under this policy if a trademark holder can initiate a proceeding against a domain name registrant, if he considers that a domain name registration infringes its trademark.

Under the UDRP complainants has to file the complaint giving the details of the domain name in question, the registrant of the domain name (respondent), the registrar with whom the domain name was registered and the grounds for the complaint. The grounds should qualify the central criteria i.e. the way in which the domain name is identical or similar to a trademark to which the complainant has rights; why the respondent should be considered as having no rights or legitimate interests in respect of the domain name that is the subject of the complaint; and why the domain name should be considered as having been registered and used in bad faith.

The respondent has opportunity to defend the complaint against him. The arbitration Panel appointed by WIPO Arbitration and Mediation Center appoints a panelist. The said panelist(s) decide the complaint on the grounds mentioned earlier and if complainant is successful in establishing the grounds he may direct the transfer or cancellation of domain name, otherwise the complaint is rejected. The decision of UDRP is implemented in 10 days. The aggrieved party can move to court within said period of ten days. The Panelist under UDRP has no right to pass injunctive reliefs or cost damages.

1. .IN DOMAIN NAMES AND INDRP

The Ministry of Information Technology, Government of India, has liberalized the policies for registration of country code Top Level Domains (ccTLDs) with effect from January 1, 2005. This would enable the general public at large to register a domain name in respect of their trade or service mark with .IN and .CO.IN extensions. Thus it will now be possible to register domain name Brand.in and Brand.co.in, subject to Brand being a registered trade/service mark in India.

In the past, only registrations were permitted with the domains .co.in granted to companies having an Indian subsidiary. These norms have now been relaxed and now the entities which do not have a presence in India may also register these domains.

It is highly recommend that registration of domain names is applied in relation to their trade marks for the country code Top Level Domains .in and .co.in

The .IN registry management and operations have now been entrusted with the National Internet Exchange of India (NIXI) www.nixi.org. IN Registry www.registry.in. is now the official .IN Registry.

From January 1, 2005, all new registrations are to be made through the accredited Registrars. Education and Research Network (ERNET) www.ernet.in/DNS/main.htm will be the exclusive Registrar for the ac.in, edu.in, and res.in domains. National Informatics Centre (NIC) will be the exclusive registrar for the gov.in domain www.registry.gov.in. Any of the accredited Registrars of .IN Registry www.registry.in/register/accredited_registrars can provide registration for the .in, co.in, net.in, org.in, firm.in, gen.in and ind.in domains

The INDRP outlines the types of disputes that can be brought and the criteria that will be considered by the arbitrators. The INDRP Rules of Procedure describe how to file a complaint, how to respond to a complaint, the fees, communications, and other procedures.

 

III. UDRP PROCEDURES AND RULES (EXCERPTS FROM UDRP & RULES MADE THEREUNDER)

1. Purpose. This Uniform Domain Name Dispute Resolution Policy (the "Policy") has been adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN"), is incorporated by reference into your Registration Agreement, and sets forth the terms and conditions in connection with a dispute between you and any party over the registration and use of an Internet domain name registered by you.

2. Undertaking by the Applicant. Under UDRP, whenever an application for registration or renewal of a domain name is sought, there is an implied warranty on the part of the applicant that: (a) the statements made in Registration Agreement are complete and accurate; To the knowledge of the applicant, the registration of the domain name shall not infringe upon or otherwise violate the rights of the third party; The purpose of registration of the domain name is not unlawful; and The domain name shall not knowingly be used in violation of any applicable laws and regulations.

3. Mandatory Administrative Proceeding.

It will be mandatory for the proprietor to submit a dispute to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that

(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

(iii) your domain name has been registered and is being used in bad faith.

In the administrative proceeding, the complainant must prove that each of these three elements are present.

4. Evidence of Registration and Use in Bad Faith. – the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

5. How to Demonstrate Your Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes:

(i) before any notice to you of the dispute, your 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; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial 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.

6. Remedies. The remedies available to a complainant pursuant to any proceeding before an Administrative Panel shall be limited to requiring the cancellation of the domain name or the transfer of the domain name registration to the complainant.

7. Availability of Court Proceedings/Jurisdiction. The mandatory administrative proceeding does not oust the jurisdiction of the Courts over the dispute. Thus either of the party can move the court before the commencement or after the conclusion of the administrative proceedings. The decision of the Panel as to the cancellation or transfer of the domain name shall not be implemented until ten business days have elapsed form the date of communication of the decision by the provider. If the proprietor institutes a law suit within that period and sends a copy of the complaint file-stamped by the clerk of the court, the implementation of the decision shall be put in abeyance until the ICANN receives (i) satisfactory evidence of a resolution between the parties; (ii) satisfactory evidence that the lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing the lawsuit or ordering that the proprietor does not have the right to continue to use your domain name.

UDRP RULES

Administrative proceedings for the resolution of disputes under the Uniform Dispute Resolution Policy adopted by ICANN shall be governed by these Rules and also the Supplemental Rules of the Provider administering the proceedings, as posted on its web site. To the extent that the Supplemental Rules of any Provider conflict with these Rules, these Rules supersede.

1. Communications

(a) When forwarding a complaint, including any annexes, electronically to the Respondent, it shall be the Complainant's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent:

(i) sending Written Notice of the complaint to all postal-mail and facsimile addresses shown in the domain name's registration data in Registrar's Whois database for the registered domain-name holder, the technical contact, and the administrative contact and supplied by Registrar to the Provider for the registration's billing contact; and

(ii) sending the complaint, including any annexes, in electronic form by e-mail to: the e-mail addresses for those technical, administrative, and billing contacts.

(iii) sending the complaint, including any annexes, to any e-mail address the Respondent has notified the Provider it prefers and, to the extent practicable, to all other e-mail addresses provided to the Provider by Complainant.

2. The Complaint

(a) Any person or entity may initiate an administrative proceeding by submitting a complaint in accordance with the Policy and these Rules to any Provider approved by ICANN.

(b) The complaint including any annexes shall be submitted in electronic form and shall:

(i) Request that the complaint be submitted for decision in accordance with the Policy and these Rules;

(ii) Provide the name, postal and e-mail addresses, and the telephone and telefax numbers of the Complainant and of any representative authorized to act for the Complainant in the administrative proceeding;

(iii) Specify a preferred method for communications directed to the Complainant in the administrative proceeding (including person to be contacted, medium, and address information) for each of (A) electronic-only material and (B) material including hard copy (where applicable);

(iv) Designate whether Complainant elects to have the dispute decided by a single-member or a three-member Panel and, in the event Complainant elects a three-member Panel, provide the names and contact details of three candidates to serve as one of the Panelists (these candidates may be drawn from any ICANN-approved Provider's list of panelists);

(v) Provide the name of the Respondent (domain-name holder) and all information (including any postal and e-mail addresses and telephone and telefax numbers) known to Complainant regarding how to contact Respondent or any representative of Respondent, including contact information based on pre-complaint dealings, in sufficient detail.

(vi) Specify the domain name(s) that is/are the subject of the complaint;

(vii) Identify the Registrar(s) with whom the domain name(s) is/are registered at the time the complaint is filed;

(viii) Specify the trademark(s) or service mark(s) on which the complaint is based and, for each mark, describe the goods or services, if any, with which the mark is used (Complainant may also separately describe other goods and services with which it intends, at the time the complaint is submitted, to use the mark in the future.);

(ix) Describe, in accordance with the Policy, the grounds on which the complaint is made including, in particular,

(1) the manner in which the domain name(s) is/are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) why the Respondent (domain-name holder) should be considered as having no rights or legitimate interests in respect of the domain name(s) that is/are the subject of the complaint; and

(3) why the domain name(s) should be considered as having been registered and being used in bad faith

(x) Specify, in accordance with the Policy, the remedies sought;

(xi) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to any of the domain name(s) that are the subject of the complaint;

(xii) State that a copy of the complaint, including any annexes, together with the cover sheet as prescribed by the Provider's Supplemental Rules, has been sent or transmitted to the Respondent (domain-name holder).

(xiii) State that Complainant will submit, with respect to any challenges to a decision in the administrative proceeding canceling or transferring the domain name, to the jurisdiction of the courts in at least one specified Mutual Jurisdiction;

(xiv) Conclude with the following statement followed by the signature (in any electronic format) of the Complainant or its authorized representative:

"Complainant agrees that its claims and remedies concerning the registration of the domain name, the dispute, or the dispute's resolution shall be solely against the domain-name holder and waives all such claims and remedies against (a) the dispute-resolution provider and panelists, except in the case of deliberate wrongdoing, (b) the registrar, (c) the registry administrator, and (d) the Internet Corporation for Assigned Names and Numbers, as well as their directors, officers, employees, and agents ."

"Complainant certifies that the information contained in this Complaint is to the best of Complainant's knowledge complete and accurate, that this Complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this Complaint are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument ."; and

(xv) Annex any documentary or other evidence, including a copy of the Policy applicable to the domain name(s) in dispute and any trademark or service mark registration upon which the complaint relies, together with a schedule indexing such evidence.

(c) The complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder.

3. Notification of Complaint

(a) The Provider shall review the complaint for administrative compliance with the Policy and these Rules and, if in compliance, shall forward the complaint, including any annexes, electronically to the Respondent and shall send Written Notice of the complaint to the Respondent, , within three (3) calendar days following receipt of the fees to be paid by the Complainant.

4. The Response by the Respondent

(a) Within twenty (20) days of the date of commencement of the administrative proceeding the Respondent shall submit a response to the Provider. The response, including any annexes, shall be submitted in electronic form and shall:

(i) Respond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain-name holder) to retain registration and use of the disputed domain name

(ii) Provide the name, postal and e-mail addresses, and the telephone and telefax numbers of the Respondent (domain-name holder) and of any representative authorized to act for the Respondent in the administrative proceeding;

(iii) Specify a preferred method for communications directed to the Respondent in the administrative proceeding (including person to be contacted, medium, and address information) for each of (A) electronic-only material and (B) material including hard copy (where applicable);

(vi) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to any of the domain name(s) that are the subject of the complaint;

(ix) Annex any documentary or other evidence upon which the Respondent relies, together with a schedule indexing such documents.

5. Language of Proceedings

(a) Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.

6. Effect of Court Proceedings

(a) In the event of any legal proceedings initiated prior to or during an administrative proceeding in respect of a domain-name dispute that is the subject of the complaint, the Panel shall have the discretion to decide whether to suspend or terminate the administrative proceeding, or to proceed to a decision.

(b) In the event that a Party initiates any legal proceedings during the pendency of an administrative proceeding in respect of a domain-name dispute that is the subject of the complaint, it shall promptly notify the Panel and the Provider.

 

IV .IN DOMAIN NAMES AND INDRP (.IN DISPUTE RESOLUTION POLICY)

India's top level domain is ".in". The sunrise period for the ".in" domains was from 1st January, 2005 to 21st January, 2005. During this period owners of registered Indian Trademarks or service marks were given an opportunity to apply for ".in" domains. The booking was opened to the public from 16th February, 2005. IN Registry is the official ".in" registry. IN Registry is operated under the authority of NIXI (National Internet eXchange of India) NIXI is a not-for-profit company registered under section 25 of the Indian Companies Act. NIXI has been set up to facilitate improved Internet services in India. IN Registry has the following responsibilities:

1. maintaining the "in" top level domain

2. ensuring the operational stability, reliability, and security of ".in"

3. implementing Government of India policies

Registrations are handled by .IN Registry accredited registrars.

1. National Informatics Centre is the registrar for gov.in domains

2. ERNET is the registrar for res.in and ac.in domains

3. Ministry of Defence is the registrar for mil.in domains

The .IN Domain Name Dispute Resolution Policy (INDRP)

The ".IN Domain Name Dispute Resolution Policy" (INDRP) sets out the terms and conditions to resolve a dispute between the Registrant and the Complainant, arising out of the registration and use of a ".in" Internet Domain Name. Registrant is a holder of the .in Internet domain name. Complainant is the person who has complaint against the Registrant.

A complaint can be filed with the .IN Registry on the following grounds:

1. The Registrant's domain name is identical or confusingly similar to a name, trademark or service mark in which the Complainant has rights,

2. The Registrant has no rights or legitimate interests in respect of the domain name:

3. The Registrant's domain name has been registered or is being used in bad faith.

The basic procedure for the dispute resolution is:

1. TO SEEK REMEDIES

The Complainant files the complaint with the .IN Registry and pays the relevant fees.

The Complainant can ask for

a. cancellation of the Registrant's domain name or

b. transfer of the domain name registration to the Complainant

2. The .IN Registry appoints an Arbitrator out of the list of arbitrators maintained by it.

3. The Arbitrator conducts the arbitration proceedings in accordance with the Arbitration & Conciliation Act 1996 and the IDRP and IDRP Policy and Rules. The Registrant is required to submit to the mandatory arbitration proceeding.

4. The Arbitrator decides on the complaint. All decisions under this Policy are published in full over the Internet.

Excerpts from the INDRP Rules

The ".in Domain Name Dispute Resolution Policy Rules" (INDRP Rules) describe the following: how to file a complaint, how to respond to a complaint, the fees, communications other procedures.

Following are the requirements which are to be incorporated in the complaint

Details of Name, postal and e-mail addresses, and the telephone and facsimile numbers of the Complainant.

Name of the Respondent and all information (including any postal and e-mail addresses and telephone and facsimile numbers) known to the Complainant regarding how to contact the Respondent including contact information based on any pre-Complaint dealings, to allow the .IN Registry to send the Complaint to the Respondent.

The domain name which is the subject of the Complaint;

Details of Registrant of Domain Name

The trademark(s) or service mark(s) on which the Complaint is based and, for each mark, describe the goods or services, if any, with which the mark is used. Also other goods and services with which complainant intends, at the time the complaint is submitted, to use the mark in the future;

The grounds on which the Complaint is made including, in particular,

1. The manner in which the domain name in question is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
2. Why the Respondent should be considered as having no rights or legitimate interests in respect of the domain name that is the subject of the Complaint; and
3. Why the domain name in question should be considered as having been registered and being used in bad faith.

The remedies sought;

Details of any other legal proceedings that have been commenced or terminated in connection with or relating to the domain name that is the subject of the Complaint;

All documentary or other evidence, including a copy of the Policy applicable to the domain name in dispute and any trademark or service mark registration upon which the Complaint relies, together with a schedule indexing such evidence.

Prescribed fee through Cheque / draft (in favour of 'NATIONAL INTERNET EXCHANGE OF INDIA')

Notification of complaint

The procedure followed by the .IN Registry on receipt of the complaint is as under:

1. If the complaint is in accordance with the policy and rules, it will be forwarded to the respondent within 3 working days. .IN Registry sends the complaint to all postal, facsimile and email addresses shown in the domain name's registration data through .IN Registry's WHOIS database at www.registry.in
2. If the complaint is not in accordance with the policy and rules, the deficiencies will be notified to the complainant within 3 working days. The complainant must correct the deficiencies in 5 working days.
3. The .IN Registry then appoints an arbitrator from the list of arbitrators.
4. The complaint and documents are forwarded to the respondent and the arbitrator for adjudicating (in accordance with the Arbitration and Conciliation Act 1996, rules thereunder, and the Dispute Resolution Policy & rules).
5. Within 3 days from the receipt of the complaint the Arbitrator issues a notice to the Respondent. The date of commencement of the arbitration proceeding is the date on which the Arbitrator issues this notice to the respondent.
6. The Arbitrator must pass a reasoned award (within 60 days) and put forward a copy of it immediately to the complainant, respondent and the .IN Registry.