Domain Name in bad faith or intent ?
Registering a domain name with malicious intent or in bad faith is popularly called Cybersquatting in WWW. This is usually done for monetary reasons whereby one books a domain similar to a registered trademark or copyright of any known company and then tries to sell it to the concerned company at an exorbitant price. For example, if one registers a domain nike.net and then attempts to sell it back to Nike, it is cybersquatting. It will be in addition a violation of law if he/she puts up a website on nike.net describing Nike products and services in bad taste. On the other hand, if someone own a company trademark like Nike Foods and host a food website on nike.net, there is no cybersquatting or violation of law. So, it is the intention and not just the name which amounts to cybersquatting.
Cybersquatting was made illegal by the passage of a federal law in 1999 known as the Anti-Cybersquatting Consumer Protection Act. The law became necessary because numerous large companies were forced to pay large sums to buy their domain names from third parties. These companies included such notables as Panasonic, Fry’s Electronics, Hertz and Avon.
Cybersquatting is quite common specially against the popular brands but most of the time, the victim company doesn’t know about it. How do you know if a company is a victim of cybersquatting? Type in a name that is a trademark or copyright like Sakshay preceded by “www” and following by “.com”, “.net” or “.org”. If you get a valid web site which looks like it is related in some way to the domain name, then there is no cybersquatting in effect (although this could be a simple trademark violation). However, if you get one of the following results, then this could be a cybersquatter.
- Can’t find server
- under construction
- page with no relationship to domain name
Of course there could be a reasonable explanation for each of these results, so they do not always mean there is cybersquatting occurring. It’s a good idea to contact the domain name owner before taking any legal action to find out what’s going on.
Since there can be many reasons both in favor and against cybersquatting in any specific case, how can one prove someone is cybersquatting?
- The domain name registrants intention was to profit from your domain name in bad faith
- Your trademark was in effect and widely known at the time the domain name was registered
- The domain name is identical to your trademark
- And you have actually registered the trademark
How do you know there is a bad faith intent? Well, there is probably no bad faith intent if one of the following is true:
- domain name is the same as the person’s name or nickname or company providing services or products in different domain.
- They are actually selling or intend on selling something on their web site – They have registered the domain prior to your trademark registration and have been using the domain name for some purpose or other.
- Does the web site owner actually have a legitimate use of the domain name? This would be, for example, true for a company named “Nike Foods”. They would have a legitimate reason for owning the “Nike” domain name.
Some clues that cybersquatting is occurring include:
- The domain name owner has put up a web site which in some way harms your company. For example, if you had somehow purchased “TATA.ORG” and created a web site about how inferior are TATA products, you are cybersquatting.
- If the domain name owner never legitimately used the domain name and simply offered to sell it to you, he is cybersquatting. If a person buys up a lot of names and has sold them over and over, there is a pattern of cybersquatting.
- If the domain name is the same as a very famous trademark, then it has a greater likelihood of being considered cybersquatting.
What can happen if someone is found guilty of cybersquatting is they can be ordered to hand over the domain name. In addition, if the domain was purchased after 1999, they can be ordered to pay monetary damages.