A Trademark can be defined as a particular word, logo or layout, any arrangement that recognizes and differentiates the foundation of that good or service. The holder of a recognized trademark maintains special privileges for the usage and rivals are forbidden after applying or utilizing either the identical mark to advertise comparable goods or services.
WHAT IS A DOMAIN NAME?
Domain name is defined as a recognition line which recognizes a sphere of executive independence, power, or influence on the net. These are created through the regulations and generates the “domain name system” (DNS). The names which are listed in the DNS can be called as a domain name. It signifies an “internet protocol resource”, like a private laptop utilized to gain entry to the net, a server laptop presenting a site or the site or some additional maintenance connected through the net. Just a few amounts of domains are available.
CAN DOMAIN NAMES BE REGISTERED AND PROTECTED AS A TRADEMARK
Registering and protecting the domain names as a trademark at either national or international stage, providing these domain names comply with all the requirements to be properly listed and safeguarded like a trademark. Any exclusive net designation that is proficient of classifying and unique goods or services in a particular company since that of another businesses, and also can perform as a dependable identifier of basis for the disturbed goods and services in the net, can be listed and safeguarded as a trademark, if it contents all additional instructions and necessities for registering that are usually pertinent to trademarks. For appropriate registering of a “domain name” as a trademark, it should be unmistakably be exclusive through all additional names and trademarks on the net, subsequently it does not mislead their buyers of the corporations involved in the similar or dissimilar arenas or disrupt communal instructions or ethics. These instances could provide increase to cases of infringement.
One more problem is registering of names of prevalent products along with a small presaging difference “pesi.com” and “radiff” for the aim of distracting movement to their site via inputting mistakes. ‘An important reason of a domain exists to classify object which possesses the site.’ It must not complicate their customers to the roots of facilities or goods beating major purpose of law.
TRADEMARK VS. DOMAIN NAME
Trademarks are given acknowledgement as well as defence in national and international authorities, wherever they are appropriately listed; also, they might not reach trademark defence universally. The domains are listed and given protection as whole of international level enormously by the association which is “ICANN [Internet Corporation for Assigned Names and Numbers]”, with the national and international defence within the direct disturbed nationwide Trademark Law and varied International Trademark Truces globally. For meeting this vigorous object, the ICANN by sustenance of “WIPO (World Intellectual Property Organization)” arranged subsequently both robust and severe procedures, a hard and disapproving scheme of the registering with credited administrators and a well-organized and efficient dispute resolution procedure, called as the “Uniform Domain Name Disputes Resolution Policy (UDNDR Policy)”.
THE “RIGHTS AND LIABILITY” TO BE RESOLVED
- “Liability for infringement”: A mark after registering is provided with solid safety within the Act. It permits the holder of listed trademark toward benefiting from the solutions of violation and passing off. It should be taken into consideration that although the “passing off” solution can only be taken regardless of the register; the solution can only be used when the said trademark is listed correctly according to the requirements. Therefore, an individual having a domain name which is infringing a listed mark can be responsible and accountable for infringing within the Act.
- “Liability for Passing off”: It varies on the theory that “nobody has a right to represent his goods as the goods of somebody”. In simple statement, an individual isn’t permitted to offer his goods underneath the charade stating that they belong to some other individual. The contemporary tort of “passing off” has 4 essentials which are:
- a “misrepresentation” through a dealer in the passage of employment, to potential clienteles or definitive buyers of goods provided, that are designed to hurt the commercial or reputation of some other trader, which is a sensibly predictable circumstance, and which is the source of real injury towards a commercial or repute of that dealer with whom the act is carried or resolve perhaps.
- The trademark is fundamentally assumed for promoting produce and for making it recognised to the buyer. It makes efforts for depicting the nature as well as the eminence of the produce and for around a time when the mark may turn out to be prevalent. They are generally at a phase when new individuals are desirous to permit the goods to that of the inventive holder. This is the reason that it is being told, in a passing off case, the claimant’s right is opposed to the behaviour of the perpetrator, which directs to the expected or deemed to lead to exploitation.
- The safety of the domain names in the “Indian legal system” is holding to a greater position in comparison to a plain acknowledgment of rights within the UDNDR Policy. The implication of the Act is broader and efficient of granting the greatest safeguard to domain globally.
- It can’t be argued by displaying the “statutory provision” to the contrary. That is for the reason that no lawful provision shall overrule a “Constitutional provision” and during cases of dispute the previous should provide path to the concluding one.
After reading the article, it is very obvious that the significance of cyberspace “domain names” retains has now risen multifarious, in relation with net interaction and enterprise & business in the net. The net is fetching a hugely prevalent and extremely favoured stage for enhanced movement of corporate-connected info pertaining to every type, by individuals and units in every monetary field, there is an imperious requirement for receiving appropriate defence to the exclusive domains.
Author’s Name: Kalyani Gupta (Amity University, Noida)