Many courts have tried to define what a domain name is. They consider it to be an address, which has to be selected by the user, and since one user would be using one address, it needs to be unique and not identical. The courts also give consideration that people would often try to guess the web address from the name, location and other features of the applicant. A domain name is more of a sign or a mark which can help to distinguish the goods and services of one trader from the goods and the services of another. Hence, a domain name can be having an intellectual value and can be given an “Intellectual Property Right Protection” .
Following a rise in the traffic and popularity of the internet, there has been a rise in the domain name issues. Domain name were considered to be earlier more of addresses that helped to located the trader or an organisation on the cyber world. However, today domain names are turning out to be more of identifiers, trademarks, marks or indications of the goods, services, etc, of a particular trader. A domain name consists of alphabets, numerals, punctuation marks, etc, and hence possesses the characteristics of a trademark.
For many companies, the value of the domain name is considered great as they would be using the internet for business . Today domain name rather than the name of the companies are considered to be identifiers and are often being used as advertisements. Hence, in many instances, domain names and trademarks are in conflict. It is important to note several special characteristics of domain names:- 1. They are global as once they are registered anybody from the world can use the address to gain access to the trader’s web site 2.
They need to be unique as only one address can lead to a web site 3. Domain name are often guessed by the users, and hence minor changes or errors need to ensure that the user still is able to reach the intended location 4. An honest and current domain name user cannot exist as in the case of trademarks 5. Domain can cannot be given for style of writing, colouring patterns, use of images, etc Companies have moved their business over to the internet and this has created several conflicts with the traditional trademark owners.
If a traditional trademark owner finds that a internet business company is using a name similar to the trademark’s owner, then he has to prove that the internet business is in fact using the name in bad faith, trying to dilute the name of the trademark owner, to create unfair competition or to create confusion in the minds of the consumer. Earlier, the NSI had a dispute resolution policy, but there was a lot of controversy in the processes, such that both opposing parties had to come to an agreement. The ICANN has implemented URDP that would be applied in all domain name disputes that are used in bad faith .
When the internet was initially started and expanded for commercial and academic use, the non-military segment of domain name allocation was done by the NSF (National Science Foundation). This was followed till 1992, and in the year 1993, the Network Solutions Incorporation was formed which helped to register all the generic TLD’s, . net’s, . com’s, etc .
Till the year 1999, the NSI ensured that all the registration and allocation of second level domain names for the major TLD’s was brought about. Considering that about half of all the domain names are in the .com segment, NSI had a major role to play in allocating domain names. They also had some amount of control over dispute resolution processes. However, the NSI did not have any official mediation processes, and was not responsible officially for domain name conflicts. Initially, the NSI provided registration to the domain names on a first come first served basis and did not check the credibility of the registering organisation. This according to many has led to conflicts regarding domain names across the world. The NSI did not check whether the domain name was a part of the party’s name .