National University of Advanced Legal Studies, Kochi (Batch of 2020)

Introduction
Any tool or technology usually brings, with its development, a unique set of legal problems. These legal issues are solved either by reinterpreting the existing body of laws or by bringing about a fresh set of legislation. Cybersquatting belongs to the latter category of legal problems. Defined as when “individuals attempt to profit from the Internet by reserving and later reselling or licensing domain names back to the companies that spent millions of dollars developing the goodwill of the trademark,” cybersquatting involves the purchasing of domains that are deceptively similar to established trademarks, and the use of this ownership as collateral in order to induce the trademark holder into licensing or purchasing these domains from the squatters at exorbitant prices. In this article, I will describe how cybersquatting intersects with various offences like trademark infringement, fraud, and even identity theft, theorise on why such an observable overlap exists, arguing that cybersquatting requires specific statutory attention.

Domain Names, a Cybersquatter’s Currency
Domain names constitute the currency that cybersquatting revolves around, as cybersquatting is a wholly unique offence that occurs only with domain names. Domain names have been elaborated on quite intensively in Panavision Intern., L.P. v. Toeppen as the alphanumeric equivalent to a website’s IP address.

Domain names usually consist of a string of "domains" separated by periods. The primary domain, or "top-level" domain (TLD), indicates the type and nature of the entity using the name. Commercial entities like companies use the ".com" TLDs, while other networks use “.net”, governments use “.gov”, etc. TLDs can also be national, e.g. “.in” for India, “.au” for Australia, “.fr” for France, etc. Next, there is the "second-level" domain (SLD), which is frequently the name or derivative of the name of the entity that maintains the website. Cybersquatters target SLDs, as TLDs are heavily monitored by the ICANN.

In spite of any existing trademark rights in the domain name, people can register a domain by paying a nominal registration fee and filling out registration papers. Since two domain name registrants are not permitted to own domain names with the exact same spelling, there is no requirement to confirm any possible trademark rights for the terms in the domain name. This lack or impossibility of regulation creates the arena for cybersquatting.

Cybersquatting as an Intersection of Existing Offences
Cybersquatting intersects with multiple offences that are already established under law. Cybersquatters, by using domain names that are deceptively similar to established marks, infringe on the trademarks of these entities, as the "likelihood of confusion" requirement is met. The confusion is caused by the fact that users of the internet who type in the name of a recognised business would mistakenly land on the squatter's website and think it to be a representation of the recognised mark. Further, as cybersquatters wish to sell their domains to active buyers, their use of the domain is commercial in nature, even if they do not actively receive revenue from the squatter site from users who labour under the misapprehension that the squatter site represents the established mark. Academic studies have also argued that cybersquatting contains elements of blackmail or extortion.

Cybersquatting is even similar to identity theft, in some ways. To understand this angle of cybersquatting, the various rapid mutations undergone by the internet, from its initial purpose as a tool created by the Department of Defense for global emergency communication, must be understood. This "information superhighway" has developed into a new market and a new community, attracting millions of internet users as potential customers. As with any such community, the internet has its own rules and norms - there is a sense of ambiguity underpinning any transaction of information that occurs on the internet, as the digital world is almost disconnected from the physical world. More often than not, the sole links connecting these two worlds to foster genuineness and sincerity in the transaction, is a domain name. Companies, prominent individuals, and other entities on the internet distinguish themselves on the internet by utilising domain names more as identifiers than as addresses. When a website or URL contains a trademark or recognisable name in its domain, users are likely to believe that the website is genuine and are more likely to purchase services offered on such sites or respond to emails from such squatter sites. This clearly amounts to fraud, as the true identity of the squatter is actively concealed using the website.

Conclusion
Considering these various aspects of cybersquatting and the overlap with other statutory provisions and safeguards, the need for specific statutory attention on cybersquatting is imperative in India. A template can be found in the United States, where trademark law proved to be inadequate in the internet arena for providing a remedy for trademark owners, resulting in Congress passing the Anti-cybersquatting Consumers Protection Act ("ACPA") in November, 1999. Not only do cybersquatters harm the business interests of entities on the internet, but they also have the potential to cause great damage to internet users and average consumers if left unregulated.

N.B.: The author certifies that the work is original. Views expressed are personal.