#மரங்களின் #மரணம்

சமீப காலத்தில் மனதை மிகுந்த வேதணைக்குள்ளாக்கிய நிகழ்வு "வாற்தா" புயலினால் சென்னையில் ஏற்பட்ட மரங்களின் மரணம் தான்.

இது இயற்கையின் நிகழ்வு தான் , தடுக்க முடியாது தான் ஆனால் இதன் பாதிப்பு நமக்கு ஏப்ரல், மே மாதங்களில் தான் தெரியும். சென்னையின் மக்கள் தொகைக்கு இருக்கின்ற மரங்களே போதாது எனும் சூழலில் இருப்பவையும் போய்விட்டால்???

அதாவது மிகப்பெரிய பிராணவாயு தொழிற்சாலையை இழந்துவிட்டோம்.

இனி நம்மால் செய்ய முடிந்தவை புதிதாக மரக்கன்றுகளை நடுவது தான் அதுவும் indigenous variety எனப்படும் இந்த மண்ணின் மரங்கள நடுவது தான். (வேம்பு,அரச மரம், தெண்ணை போன்றவை)

நம் சந்ததிகளுக்கு சொத்து சேர்பதை விட முக்கியம் சுவாசத்தை சேர்த்து வைப்பது.

#மரம் நடுவோம், #மழை பெறுவோம், #பல்லுயிர் காப்போம்.

Geographical Indication for an Indigenous product - Toda Embroidery

Toda embroidery Got Geographical Indication

                             

Toda are a small Indigenous community who live on the isolated Nilgiri plateau of Southern India. Before the 18th century, the Toda coexisted locally with other communities in a loose caste-like community organization in which the Toda were the top ranking. The Toda population has hovered in the range 700 to 900 during the last century.

The Toda embroidery art, known as ‘pukhoor,’ has been passed on to generations and now they got Geographical Indications for their Embroidery work so, from now no one can use the word "Toda embroidery" other than these indigenous people. 

The GI status was given in March by Registry of Geographical Indications, Chennai. The recognition came after five years of effort by Toda Nalavaazhvu Sangham, Key Stone Foundation and Poompuhar (Tamil Nadu Handicrafts Development Corporation).

The status not only ensures uniform pricing for Toda embroidery products but also insulates the art from being duplicated. 

Of the nearly 1,600 tribal people in nearly 69 hamlets, a little more than 400 are said to be actively involved in embroidery. The product range has now widened from Pootkhulu (shawl) to wall hangings, table mat, shoulder bags and gents and ladies shopping bag. Organisations such as the Tribal Cooperative Marketing Development Federation of India have been facilitating training programmes.

Compulsory license - first case in Indian Legal history

Land Mark Decision by Supreme Court - Compulsory License

The Supreme Court on Monday rejected pharma giant Novartis AG’s plea to preserve its patent over a life-saving cancer drug, Glivec, drawing a huge sigh of relief from thousands of patients in India and in dozens of developing countries as the fear of an almost 15-fold escalation of drug costs receded. It is the biggest setback for multinational pharma companies, which have been denied patent protection for a series of life-saving drugs in recent years. 

Invented in 1991, Glivec is a miracle cure for a type of blood cancer called chronic myeloid leukemia (CML). In this form of cancer, certain bone marrow cells go rogue and produce excessive white blood cells, causing mild fatigue and hip pain initially, but slipping into an out-of-control crisis of zooming platelet and white cell counts. It used to be fatal, but with Glivec, the survival rate is over 95%. Imanitib, the active component, is on the National Essential Drugs List in India. 

India has an estimated 3 lakh CML patients, with 20,000 added every year. Glivec is sold by Novartis for about 1.2 lakh per month. Indian manufacturers sell the same drug for 8,000. This was the reason why Novartis launched a seven-year-long legal battle to protect its patent on the drug.

CASES OF DEATH SENTENCES

Execution of Veerappan’s four aides stayed

The Supreme Court on Monday stayed the execution of four associates of slain forest brigand Veerappan till Wednesday. This follows a petition filed on their behalf by advocate Shamik Narain, seeking commutation of their death sentence to life imprisonment. It will be heard on Wednesday.

Their mercy petitions had been rejected by President Pranab Mukherjee.

A Bench of Chief Justice Altamas Kabir and Justices Anil R. Dave and Vikramajit Sen granted liberty to the petitioner to amend the petition by making the four convicts parties.

Earlier, the Chief Justice told senior counsel Colin Gonsalves, appearing for Mr. Narain, that the petition in the present form was not maintainable. Counsel said he had received photo copies of the authorisation and the convicts’ vakkalatnamas. Their families had also given vakkalatnamas and the originals sent through courier would be received in a day or two and he should be permitted to amend the petition. Simon, Gnanaprakash, Madaiah and Bilavendra, who were convicted of killing 22 persons in landmine blasts in Palar, are in the Hindalga Central Jail in Belgaum since 2004.

Mr. Gonsalves pointed out that a Bench headed by Justice Singhvi had reserved judgment in the Devinder Pal Singh Bhullar case, whose mercy plea has suffered a long delay. The court in that case had appointed senior counsel Ram Jethmalani and senior counsel T.R. Andhyarujina as amicus curiae to assist it. The case of killers of Rajiv Gandhi was transferred to this court to be heard after the judgment, Mr. Gonsalves said. The judgment would have a bearing on all similar matters, he said and prayed for commutation of the death sentence of the four convicts to life imprisonment on the ground of an inordinate nine-year delay in disposal of their mercy petitions.

When the Chief Justice asked Attorney-General G.E. Vahanvati to examine the question of delay in disposal of mercy petitions, the latter said the petition was not maintainable. The petitioner had not even mentioned why the four convicts were convicted, he said and added “they were sentenced for a crime against the state.” When the Chief Justice said “what is important is the question of delay,” Mr. Vahanvati said “the President cannot forecast [the Bhullar judgment] and decide an issue.”

Mr. Andhyarujina told the court that the Justice Singhvi Bench had called for files relating to all mercy petitions and reserved judgment in April 2012 and the decision would have a bearing on all cases.

Mr. Jethmalani urged the court not to stand on technicalities and pleaded for a stay on the execution. He said in ‘death cases’ a two-judge Bench headed by Justice Chinnappa Reddy had laid down a proposition of law that the whole process of trial, appeals and mercy petitions should be decided within two years and this judgment was followed by the Privy Council and House of Lords. However, this judgment was whittled down by a three-judge Bench. Until the judgment was pronounced in the Bhullar case, all executions must be stayed.

The 56-year-old companies act has been overhauled.

        The 56-year-old companies act has been overhauled

The Lok Sabha today passed the Companies Act 2012 that tightens disclosure norms for companies, makes it mandatory to rotate auditors every five years and seeks to regulate related-party transactions to check corporate frauds.

The new legislation also attempts to provide better protection to minority shareholders and makes it mandatory for companies to spend every year at least 2 per cent of their average net profits made during the three immediately preceding financial years on corporate social responsibility (CSR) projects.

The CSR proviso will apply to companies that have a net worth in excess of Rs 500 crore, or a turnover of Rs 1,000 crore or more, or a net profit of Rs 5 crore or more.

If a company fails to spend the amount, its board of directors will have to spell out why it couldn't do so.
The provision is hugely controversial since it is the first time that any government anywhere in the world has tried to make CSR spending mandatory, sparking a debate over ethics, social obligations and the basic principle of voluntarism in the act of giving. Many governments do, however, insist on mandatory CSR reporting.

The legislation does not precisely define what constitutes CSR though it does give companies the freedom to make the desired spending in the local areas where they operate.

Among other things, the act also proposes to tighten the laws for raising money from the public ' a move that could especially hit chit funds. Only banking companies, NBFCs and other companies allowed by regulators will be permitted to accept deposits from the public.

Deposits may be accepted only after (a) obtaining credit rating; (b) providing deposit insurance; and (c) depositing at least 15 per cent of the amount of deposits maturing during the current and next financial year in a scheduled bank

The legislation also grants statutory powers to the Serious Fraud Investigation Office (SFIO) which will look into acts of malfeasance, big corporate frauds and other corporate shenanigans. The SFIO, which has already started investigations into illegal chit funds operating in Bengal, will get a big fillip once the legislation comes into force.

Replying to the debate on the bill, minister of state for company affairs Sachin Pilot said though "chit funds are regulated by state governments, wherever we find that they have been using fraudulent means, we will take strict action".

Surprisingly, the act was supported by Trinamul Congress's MP Saugata Roy who made a case against chit funds and raised questions about the Sahara group's spending. "I want the bill to be stronger … I support giving the SFIO even more powers," Roy added.

The act also comes several years after the first version was introduced in Parliament. Hectic lobbying by top corporate honchos saw the bill get delayed and watered down over the years. However, with the Rs 7,000-crore Satyam fraud bursting upon the Indian corporate scene, the bill was reworked to build proper defences against large-scale frauds.

The act provides that: "Shareholders associations or group of shareholders are to be enabled to take legal action in case of any fraudulent action on the part of company and to take part in investor protection activities and class action suits."

It also seeks to treat insider trading by company directors as a criminal case. In the Satyam case, it was alleged that the promoters had rigged profits to ramp up share prices and make windfall gains on stock sales.
The new law also aims to strengthen corporate governance in firms and makes it mandatory for independent directors to constitute at least one-third of the board.

In case a company has one or more subsidiaries, it shall in addition to stand-alone financials, prepare a consolidated financial statement of all subsidiaries. Pilot also made it clear that the new law would mandate that a director's remuneration would be capped at 5 per cent of profits It also bans buy back of shares within one year of the last buyback of shares.

The number of layers of subsidiaries a firm can have will normally be restricted. Section 186 of the legislation says a company ought not to make investments through more than "two layers of investment companies" but some exceptions have been built in.

It also facilitates joint ventures and relaxes restriction on the number of partners in entities such as partnership firms and banks.

Audit firms cannot take up more than 20 assignments at any time. Independent directors will no longer be eligible for stock options but will get fees and profit linked commission, subject to rules.

The new Act also provides for a new corporate entity in the form of one-person company (OPC). It also gives powers to the government to bring a simpler compliance regime for small companies.

Officials said the new Act has drafted a single comprehensive legal framework that would govern everything corporate - from incorporation to liquidation and winding up - to be administered by the Centre. The bill also harmonises the company law framework with the imperative of specialised sectoral regulation, an official release said.

The new law has also modified provisions for audit of government companies by Comptroller and Auditor General of India (CandAG). The modification has been made to enable CandAG perform such audits more effectively.

THANJAVUR VEENA TO BE FIRST INDIAN INSTRUMENT TO GET 'MADE IN THANJAVUR' TAG

Since from yearly sangam age the Thanjavur veena marks a important place in music history of Tamilnadu. For long, musicians playing the Thanjavur veena made news. Now the veena and the artisans of Tamil Nadu have a chance. The veena is likely to get a 'Geographical Indication' registration, making it the first musical instrument to get such a registration in the country.Goods having specific geographical origin and possessing "distinct qualities, reputation or characteristics essentially attributable to that place of origin" are usually given the GI tag. The registration will help the famous veena get the tag Made in Thanjavur. Such a recognition would prevent the misuse of its name/reputation. Chinnaraja G Naidu, Assistant Registrar of Trade Marks and GI Registry told The Hindu that for the first time his registry had received application for registration of a musical instrument.According to Intellectual Property Rights (IPR) attorney P Sanjay Gandhi, who has obtained GI tags for a record 10 products unique to the state, the GI protection for Thanjavur Veena is to be given in favour of the Thanjavur Musical Instruments Workers Cooperative Cottage Industrial Society Limited, reported Times of India.The veena's history records back to the Vedic times. Identified with goddess Saraswati, the veena also finds mention in the Ramayana and the Mahabharata. But the current form of the Saraswathi Veena with 24 fixed frets evolved in Thanjavur during the reign of Raghunath Nayak.The veena is about four feet in length consisting of a large resonator (kudam), a wooden bridge (kudurai), a tapering hollow neck (dandi) and a small resonator. And is it unique to Thanjavur because the instrument is made from a particular strain of matured jack fruit tree found only in that area.The body of the Thanjavur Veena is painted and engraved with delicate wood work, which usually consists of picture of god and goddess, motifs of flowers or birds. Great art and craftsmanship are required in the making of the Veena, and even a minute flaw can spoil the tone of the instrument.In Chennai, the creation of sabhas attracted a lot of musicians. But with the disintegration of feudalism in Thanjavur, temples there fell on bad days and lack of patronage forced musicians to migrate to cities in search of career avenuesToday, there are few musicians in the district, and only festivals and concerts serve as reminders of the days when music flourished in every village.The only link between music and Thanjavur was carried forward by the makers of the musical instruments. The craftsmanship in making the instrument was handed over from one generation to the other of Viswakarmas. But gradually, the younger generation stopped coming forward.And today, even less than 100 artisans in Thanjavur are involved in the profession.If granted, Thanjavur Veena would become the 19th product to obtain GI recognition from Tamil Nadu. And maybe, this would encourage many many craftsmen across the country.

CYBERSQUATTING – THE DIGITAL VERSION OF PASSING OFF

Introduction

In this large and tangled web of the internet called “Cyberspace” the most common way for consumers to find what they are looking for is to type the Domain name of the brand or company they looking for, the natural connection between trademarks and domain names has been explored by some who have the trademarks of others as domain names and then tried to sell those domain names back to the trademark owners or third parties at a high price, which is known as “Cybersquatting”[1]. Cyber squatting is the most crucial type of domain dispute prevalent around the world. It is summarized well in Manish Vij v. Indra Chugh,[2] the court held that “an act of obtaining fraudulent registration with intent to sell the domain name to the lawful owner of the name at a premium”. This is an abusive practice which is a form of trafficking domain names.

Types of Cyber Squatting

Cyber squatting can be of various types, most common type is typo squatting, when a cyber squatter registers domain names containing variant of popular trademarks. Typo squatters mainly rely on a fact that Internet users will make typographical errors when entering domain names into their web browsers. Some common examples of typo squatting include: The omission of the “dot” in the domain name: wwwindia.com;

A common misspelling of the intended site: india.com, A differently phrased domain name: indias.com, A different top-level domain: india.org.

Trade mark

Trade mark means a mark capable of being represented graphically and which is capable of being represented graphically and which is capable of distinguishing goods and services from one person of others and may include shape of goods, their packing and combination of colours.[3]

Deceptive similarity

Deceptive similarity[4] generally means one person using any Trade mark which is identical or deceptively similar to the Trade mark which is already in use, whether registered or unregistered, it can also be called as Passing off when one tries to pass off his goods with the Trade mark or name of another and it is an offence punishable under relevant law, but this is in regular format when it comes to cyber space.?

Deceptive similarity in Cyber space

The domain name is simply the address of an individual computer connected to the Internet. From a user's point of view, a domain name is an IP address in a human-friendly form and if the human-friendly form of the IP address coincides with the name of a business or a trademark, it becomes a valuable asset. Domain names can incorporate trademarks in a number of ways. The most obvious is the verbatim adoption of the mark followed by a gTLD, such as addidas.com. A person who is not the trademark owner and registers the trademark as a domain name engages in relatively straightforward trademark infringement. However, trademark infringement can also take the form of trademark dilution, which is prohibited under the U.S. Federal Trademark Dilution Act (FTDA). The purpose of this act is to protect owners of famous marks against dilution and tarnishing of their mark.

Innocent squatting

A trademark is not infringed by a domain name unless the trademark existed at the time of domain name registration. This kind of cybersquatting is speculative and legitimate. John D. Mercer also identifies "innocent" cybersquatting,[5] whereby the registrant does infringe a trademark "based on some unrelated interest in the word itself, without intending harm to a trademark owner" and "concurrent" cybersquatting, whereby the registrant uses the same trademark as another commercial entity, but not within a competing industry.

Intentional squatting

The harmful kind of cybersquatting involves intentional bad faith trafficking in domain names that are the same as, or a dilution of, existing trademarks. Mercer offers a fitting definition: "an illegal cybersquatter should be one who acquires a domain name for the sole purpose of obtaining money or other advantage from the trademark owner, with no intent or desire to use the domain name, except as an instrument toward this purpose.

Creating Likelihood of Confusion

The main function of a trademark is to prevent consumer confusion. A consumer knows that he or she can get the same quality food in a McDonald’s in Chennai as he or she can from a McDonald’s in Bangalore. Given our global economy, the importance of trademarks cannot be overstated. The law of trademarks is designed to prevent competitors from confusing customers into thinking that they are buying products and services from a trusted, known source when in reality, this is not the case. A competitor who uses a trademark that is confusingly similar to an existing trademark can be prevented from doing so by the application of trademark law. This usually occurs when the holder of the trademark raises a claim or sues the alleged infringer.

In order to prove trademark infringement, the owner of the trademark must show that there is a “likelihood of confusion”[6] between his or her trademark and the allegedly infringing mark. Over many years and many cases, the courts have set forth a list of eight to 13 elements that are relevant to this determination. This article will discuss the two or three most important of these elements and provide examples of how each element is applied in practice. The most important element of the likelihood of confusion analysis is a comparison of the appearance, pronunciation, meaning, and commercial impression of the respective marks. Obviously, if the marks are exactly the same in spelling and how they are pronounced, there is a greater chance of likelihood of confusion between the marks. It is important to note that slight misspellings or changes in an established mark will not enable a competitor to use his proposed mark. For example, a beverage manufacturer could not adopt the mark “Koka Kola,” because although this mark is spelled differently from the famous Coca-Cola mark, it is still pronounced the same.

Factors for Likelihood Confusion

1. the similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);

2. the similarities of the goods and services involved (including an examination of the marketing channels for the goods);

3. the strength of the plaintiff's mark;

4. any evidence of actual confusion by consumers;

5. the intent of the defendant in adopting its mark;

6. the physical proximity of the goods in the retail marketplace;

7. the degree of care likely to be exercised by the consumer; and

8. the likelihood of expansion of the product lines

Legal Issues

As stated in the above headings the Cybersquatting cannot be brought within a purview of a single Law. It can be brought under Trademark infringement in some cases, Deceptive similarity in some cases, passing off in some cases, but regarding my concern the Deceptive similarity and passing off suits it more even it is a Trademark infringement, though there are no proper provisions to punish Cyber squatters across world, but developed countries like U.S, Canada, U.K are having provisions in their respective laws for this.

Legal resolution in different countries

The domain name disputes involving alleged bad-faith registration are typically resolved using the (UDRP)[7] process developed by the Internet Corporation for Assigned Names and Numbers (ICANN)[8]. Critics claim that the UDRP process favors large corporations and that their decisions often go beyond the rules and intent of the dispute resolution policy. A UDRP complaint may be initiated at UDRP proceeding with an approved dispute resolution service provider. A victim of cybersquatting may also file an InterNIC Registrar Problem Report regarding a cybersquatter posing as a registrar.

Some countries have specific laws against cybersquatting beyond the normal rules of trademark law.

In U.S

The United States, for example, has the U.S. Anticybersquatting Consumer Protection Act.[9] This expansion of the Lanham (Trademark) Act (15 U.S.C.) is intended to provide protection against cybersquatting for individuals as well as owners of distinctive trademarked names.

Australia

Any citizen of Australia over the age of 16 can obtain an ABN[10] (which is free) and use it to register as few or as many domain names as they like but they need to have a "close and substantial" connection to the name or it needs to be an "exact match, abbreviation or acronym" of their name.

Internationally

The copyright agency of United Nations, WIPO[11] has provided an arbitration system since 1999, wherein a trademark holder can attempt to claim a squatted site. In 2006, there were 1823 complaints filed with WIPO, which was a 25% increase over the 2005 rate. In 2007 it was stated that 84% of claims made since 1999 were decided in the complaining party's favor.

Worldwide Specific Resolution Systems

ICANN

To reach another person on the Internet you have to type an address into your computer -- a name or a number. That address must be unique so computers know where to find each other. ICANN coordinates these unique identifiers across the world. Without that coordination, we wouldn't have one global Internet.

In more technical terms, the Internet Corporation for Assigned Names and Numbers (ICANN) coordinates the Domain Name System (DNS), Internet Protocol (IP) addresses, space allocation, protocol identifier assignment, generic (gTLD) and country code (ccTLD) Top-Level Domain name system management, and root server system management functions. These services were originally performed under U.S. Government contract by the Internet Assigned Numbers Authority (IANA) and other entities. ICANN now performs the IANA function.[12]

Uniform Domain Name Dispute Resolution Policy

For coordinating the assignment of Internet domain names, ICANN has established the Uniform Domain Name Dispute Resolution Policy (UDRP). The UDRP is “an alternative form of dispute resolution [designed] to combat cybersquatting”.[13] As such, dispute resolution under the UDRP provides a quick and less expensive solution to cybersquatting.

To bring a successful claim under the UDRP, a complainant must establish that the domain name is “identical or confusingly similar to a trademark or service mark in which the complainant has rights,” the registrar has “no rights or legitimate interests” in the domain name, and the “domain name has been registered and is being used in bad faith.”[14] Mark owners can bring UDRP administrative proceeding claims against registrants of domain names; as long as the registrants have registered the domain names through an ICANN accredited registrar.[15] These are the two main dispute resolution system for Cyber squatting issues globally.

U.S the leading protector

Anticybersquatting Consumer Protection Act[16]

The U.S is the leading country to enact specific law for protecting consumers from Cyber squatting. This expansion of the Lanham (Trademark) Act (15 U.S.C.) is intended to provide protection against cyber squatting for individuals as well as owners of distinctive trademarked names.

A victim of cyber squatting in the United States has two options:

a. sue under the provisions of the Anti cyber squatting Consumer Protection Act (ACPA), or

b.use an international arbitration system created by the Internet Corporation of Assigned Names and Numbers (ICANN).

In court system, jurisdiction is often a problem, as different courts have ruled that the proper location for a trial is that of the plaintiff, the defendant, or the location of the server through which the name is registered.

Indian Scenario

In India victims of cyber squatting have several options to combat cyber squatting. These options include: sending cease-and-desist letters to the cyber squatter, bringing an arbitration proceeding under ICANN’s rules, or bringing a lawsuit in state or federal court. Whatever strategy a victim of cyber squatting elects to use, that person should not dismiss the serious effects that cyber squatting can have if left unchecked.

A case could be filed with the .in registry handled by National Internet Exchange of India(NiXI) who brings the matter to fast track dispute resolution process whereby decisions are transferred within 30 days of filling a complaint.

Like always our legal system is silent on this matter too, there is no provision in the current or proposed Information Technology Act in India to punish cyber-squatters, at best, the domain can be taken back. Though there is no legal compensation under the IT Act, .in registry has taken proactive steps to grant compensation to victim companies to deter squatters from further stealing domains. Most squatters however operate under guise of obscure names.

Case study

In U.S

Intermatic Inc. v. Toeppen[17]

Plaintiff Intermatic, owner of the trademark INTERMATIC in connection with electronic equipment, sought to enjoin defendant Toeppen from using the domain name “intermatic.com.” In addition to registering “intermatic.com,” Toeppen had registered over 200 domain names containing names of well-known companies. Toeppen never used the domain name “intermatic.com” to sell or promote any goods or services over the Internet. His “intermatic.com” website initially contained information about a software program he was developing called “Intermatic,” but after a week he replaced the contents of the site with a map of Champaign-Urbana, Illinois. Toeppen did, however, intend to profit by selling or licensing the domain name to Intermatic. Intermatic filed a motion for summary judgment. Although the court found that certain factors weighed in favor of Intermatic on its infringement claim, summary judgment was inappropriate on that claim because of factual disputes on other factors (similarity in products, no evidence of actual confusion, and whether Toeppen willfully intended to pass his products off as those of Intermatic). The court, however, granted summary judgment to Intermatic on its dilution claim under the Federal Dilution Act, finding that INTERMATIC was a famous mark and that Toeppen’s intent to arbitrage the “intermatic.com” domain name constituted a “commercial use” under the Act. The court permanently enjoined Toeppen from using the mark INTERMATIC, from taking any action to prevent Intermatic from obtaining the domain name “intermatic.com,” and from asserting any further interest in that domain name.

In India

Yahoo! Inc. v. Akash Arora and another,[18]

CASE FACTS

Yahoo Incorporation is the owner of the well known trade mark, Yahoo and of the  domain name Yahoo.com; both the trademark and the domain name acquired a distinctive name, good will and reputation. Yahoo.com had been registered by Yahoo Inc with Network Solution Inc since 1995 and offers a whole range of web based services.

The trade mark Yahoo had been registered or was close to being registered in 69 countries. Yahoo Inc had not registered its domain name in India. Akash Arora started to offer web-based services similar to those offered by Yahoo.com under the name of Yahoo India. Yahoo Inc had sued Akash Arora for using a trade mark deceptively similar to its own and passing off his services as those offered by Yahoo Inc.

ISSUE:

Whether the act of Akash Arora in registering the domain name Yahoo India, to offer services similar to those offered by Yahoo Inc, is an infringement of the trade mark of Yahoo Inc and amounts to passing-off under the relevant sections of the Trademark and Merchandise Act?

RULE OF LAW

When a defendant does business under a name which is sufficiently close to the name under which the plaintiff is trading and that name has acquired a reputation and the publicat large is likely to be misled that the defendant's business is the business of the plaintiff, or is a branch or department of the plaintiff, the defendant is liable for an action in passing off.

ANALYSIS:

Yahoo Inc contended that Akash Arora adopted the domain name of Yahoo to offer services similar to those of Yahoo Inc and had attempted to cash in on the good will generated by Yahoo Inc. because there was every possibility of an Internet user getting confused and deceived, believing that both the domain names, Yahoo and Yahoo India belong to Yahoo Inc.. Therefore, Yahoo Inc. argued that Akash is liable for passing off.[19]

As the two trade marks/domain names 'Yahoo!' and 'Yahoo India!' were almost similar and the latter offered services similar to those offered by the former and as the latter passed them off as being offered by Yahoo Inc., the court held Akash liable for passing off and restrained him from using the deceptively similar domain name.

The decision of the court in this case is based on the rationale that where the value of a name lies solely in its resemblance to the name or trade mark of another organization, the public is likely to be deceived by the use of such name and such act would amount to passing off.

Critical Analysis

By analyzing the above cases the courts gave same decision both in India and in U.S that Cybersquatting amounts to Trademark dilution and Passing off, it seems that Cyber squatting is a serious case of Trademark infringement and there are legal remedies available for the persons who affected. Though it is a newly developed scenario in IP law and most of the IP laws not having enough provisions to punish the Squatters the courts are acting brilliantly and doing a good job in making good decisions.

Conclusion

The current situation prevailing in the world is certain that cybersquatting is a menace. It is a menace which has no boundaries. In my opinion, it is similar to terrorism. The only difference is that in the latter human life is affected. Cybersquatters have robbed businesses of their fortune. Looking from the Indian perspective cybersquatting has been prevalent since internet came to the subcontinent. The courts in India have decided many cases related to cybersquatting. It is the imperitive for the parliament to enact a law which would deal with this Cyber terrorism. As for as now there is no specific law which prohibits cybersquatting like that of the United States.

Cybersquatting has opened the eyes of governments globally and has prompted them to look into this phenomenon in a serious manner. The United States by enacting the ACPA, has taken a encouraging step in protecting domain names in its cyberspace. It is high time India and other countries come out with legislations to protect this virus from spreading. If India enacts a specific law for protecting Trademarks from Cyber squatting then it will be “One small step for a man, a gaint leap for the Mankind” as said by Neil Armstrong.

Refernces:

Bibiliography:

1. guide to cyber laws – Rodney R. Ryder

2. Trademarks act, 1999

3. The Economic structure of IPR – William M. Landens

4. Commentary on Information Technology Act – Apar gupta

5. Inside Cyber Warfare : Mapping the Cyber World – Jeffrey carr

6. Indian Law Journal

7. Brain league Journal

Webiliography:

1. www.wipo.int/

2. Cybersquatting.com

3. http://www.tms.org/pubs/journals/JOM/matters/matters-0212.html

4. www.icann.org

5. www.indiakanoon.org

6. www.internetlibrary.com

[1] Guide to Cyber laws by Rodney D Ryder

[2] All India reporter 2002 Del 243

[3] Trade marks act,1999

[4] Trademarks act, 1999

[5] John D. Mercer, "Cybersquatting: Blackmail on the Information Superhighway" (2000) 6 Boston University Journal of Science and Technology Law, 11.

[6] http://www.tms.org/pubs/journals/JOM/matters/matters-0212.html

[7] Uniform Domain Name Resolution Policy

[8] Internet Cooperation for Assigned Names and Numbers

[9] ACPA of 1999

[10] Australian Business Number

[11] World Intellectual Property Organization

[12] http://www.icann.org/en/about

[13] Dara B. Gilwit, Note, The Latest Cybersquatting Trend: Typosquatters, Their Changing Tactics, and How to Prevent Public Deception and Trademark Infringement, 11 WASH. U. J.L. & POL’Y 267, 282 (2003).

[14] ICANN, Uniform Domain Name Dispute Resolution Policy, ¶ 4(a)(i)-(iii),

[15]ICANN, FAQs, supra note 15.

[16] ACPA, 1999

[17] 947 F. Supp. 1227 (N.D. Ill. 1996) decided by ANN CLAIRE WILLIAMS, District Judge

[18]Arb. L. R. 620 (Delhi High Court).

[19] Brain league journal