INTRODUCTION:

The concept of the trademark in cyberspace has become very important as the use of technology is growing day by day and the whole world has become a connected global unit. In order to understand this concept, we first need to understand what do the two terms ‘trademark’ and ‘cyberspace’ mean.

With the growing complexities of trade and commerce in the world, the flow of counterfeit products in the market have become rampant. The importance of intellectual property is growing every day and its scope has extended across borders and has gained international recognition. If a bona fide buyer purchases a good or commodity believing it to be a product offered by a particular trader and later when he or she finds out that it was not up to the mark or the product does not belong to the presumed trader. This process often results in the bad reputation of that trader. Therefore, a need to create a unique mark which symbolize a particular trader as the source of the product becomes essential. It is important not only for the trader but also to protect the consumer from being fooled by counterfeit products.

In this scenario, Trademark plays a significant role. A trademark can generally be defined as any mark, symbol or a word, emblem that represents a company or any product. It can be a legally registered mark.

The Intellectual property protection in relation to trade was recognized by the world trade organization (WHO) in the form of TRIPS agreement. The Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement was created as a legal agreement between the member states of the WTO. The agreement came into effect on 1 January, 1995. The agreement is considered a landmark and complete agreement on Intellectual property rights. Article 15 of the act deals with trademarks and lays down directory details for the protection of the same. India is a signatory to the TRIPS agreement.    

The Trade marks act, 1999 is the intellectual property law in India that govern the trademark. Section 2(1) (zb) defines ‘trademark’ as a mark capable of being represented graphically and which is capable of distinguishing the good and service of one person from those of others and may include shape of goods, their packaging and combination of colors.

The Sind High court observed that Trademark in general refers to any picture, or word or marker which is fixed on and with the product of a particular trader with an aim to differentiate that particular good or product from those products and good which are of similar nature. For example, Whirlpool of the Whirlpool Corporation, USA, Red Bull of the Red Bull GmbH etc. are some popular trademarks in the market.

Cyberspace in laymen terminology refers to the space created by the use of the computer technology. In other words, it refers to the virtual space created by the connection between different computers. The Merriam Webster Dictionary defines cyber space as ‘the online world of the computer networks and especially the internet.’ Thus, the concept of Cyberspace is intangible in nature. The cyberspace is not restricted to a particular geographic territory, it lacks any barrier of physicality and extends to the whole world, connecting anyone and everyone.

Cyberspace is a shared space where interactions and communications take place through the platform of the internet. The internet technology is revolutionizing the world and the trend of carrying out trade and commerce using the cyber platform has come into vogue. Many e-commerce websites are also developing to facilitate such kind of trade and carry out successful transactions between the consumer and the traders. The use of online platforms has boosted the economies of different countries.

There is no physical interaction between the parties of the trade. The online space becomes a preferred choice of the consumers as consumers are able to surf through the available without any restriction and time barrier, they are granted the freedom to compare prices of different products and satisfy themselves completely before making the payment for any product. The cyberspace medium has made transaction and trading much simpler and easier.   

With the world entering the online era where nowadays each and every activity of our daily lives in being influenced by the internet. It becomes essential to protect the intellectual property on the internet in this cyberspace. 

The Cyberspace is not free from flaws. Cyber crime such as cyber fraud, cyber-attacks, cyber wars etc. are also taking place on a frequent note and the complexity of the crimes is of such a nature that it becomes very difficult to determine the jurisdiction and punish the offender who may be sitting in some other part of the world. 

TRADEMARKS IN CYBERSPACE:  

Traditionally the trademark law was applicable to protect those traders who had a registered trademarks, by providing them an exclusive right to carry on trade under that mark and preventing any third parties from using the same. However, with the rise of the internet and the paradigm shift from the traditional trading process to the online platform. Many new challenges have taken birth in relation to protection of trademark.

The domain name is one of the main areas where the conflict relating to the trademark in cyber space arises. Domain name can simply mean the name used by a website, it is like an address which is used by the people to access that particular website.  The domain name is very important in the identification of computers done with the use of IP address which is present in the form of some codes. But due to the complex numeric coding of the IP address; easier alternatives that can be remembered by all were developed. This alternative is a domain name, it can be a combination of words, symbols and numbers. For example: www.lawyerswork.com is an example of a domain name.

Registration of domain name is very important to establish a formal marketable existence on the internet. There is as such no trademark review of the domain names as it is burdensome work for the registrar. Therefore, there arises disputes regarding the domain name vis-à-vis trademark  under four circumstances.

The first situation is called the Cyber-squatting. It refers to the act of registering a domain name which is made for the purpose of carrying out trade and commerce. The domain name is the trade name of a particular company but is not registered by the company. Such a registration is made by a third party with a view to make profit by selling the domain name to the actual owner. Until the third party has the domain name, the owner is not able to register his trademark as domain name, thereby his right of registering become infringed. It is observed that domain name is an identification of a company. In general terms, it performs the same functions as that of the trademark of a particular company. The domain name is more than just an address to reach a particular website.   

Further if a person registers a domain name which is identical or similar to the trademark of a company to which he has no commercial connection, then an injunction against the person can be passed. There was no law made in relation to the protection of the domain name.  United States was the first country to introduce a legislation in this regard. It was called the Cybersquatting infringement act, 1999.

The second situation is the cyber parasite where the gains and profit are made by the use of the actual domain name. The method would involve using a similar or wrongly spelled domain name which is similar to that of a famous trademark. Such techniques are used to pass off products by method of deception to the innocent consumers. In the case of Rediff Communication Ltd. V. Cybertooth and Another where the defendant had registered a domain name similar to that of the plaintiff was carrying a business of similar nature. Court observed that the defendant had an intention to carry out his trade and business under the trademark or trade name of plaintiff, thereby there being an infringement of the plaintiff’s right.

The third situation is the Cyber twin. This situation arises where both of the parties to the case hold an authentic claim towards a particular domain name.

The fourth situation in relation to the domain name is the reverse cyber-squatting. This is counter process to the cyber-squatting. It involves the owners of the trademark trying to take over the domain name by trying techniques of making false allegations of cybersquatting against the rightful owner of the domain name. The domain name owner in order to avoid any legal charges, is compelled to transfer the domain name to the trademark owner.

Apart from the above-mentioned challenges, there are also some other challenges posed in the cyberspace on the trademark of a company. Hypertext links is another area where a conflict regarding a trademark may arise in the cyber space. It simply refers to transferring the user from one website location to another. These links are set between web pages. For example, on some web page; we see a hyperlink of ‘Gucci’ and upon clicking the link, we are not taken to the official web-page of the brand but to some other web page which may sell similar product but not of the brand Gucci. Such hyperlink result in the infringement of trademarks. Further, it is easy to control the hyperlink present in the cyber space. Therefore, a practical answer is yet to be devised in this aspect. 

Use of Keywords can also sometimes lead to infringement of trademark in a cyberspace. Many times, the web pages use popular trademarks as keyword and so that their web pageappears on the top during the search. The innocent buyer may be deceived by the use of trademark and this results in infringement.

INDIA:

India is not new to the concept of infringement of trademark in the cyberspace. India Trademark act, 1999 is a comprehensive legislation which deals with infringement of trademarks. As of now, the Indian legal system does not have a full dedicated statute to deal with issues relating to domain name or cybersquatting etc. but the scope of the trademarks act is very vast. The Yahoo Inc v. Akash Arora and Another is a landmark case law in India in relation to protection of trademark in the cyberspace. In this case before the Delhi high court where the defendant had taken a domain name similar to that of the plaintiff. The court recognized the scope of trademarks over the domain name and granted the protection to the plaintiff under the trademarks act.

REMEDIES:

There are many remedies which can be taken up in case of infringement of trademark in the cyberspace. The world Intellectual Property Organization (WIPO) is one organization at an international level created for the protection of the intellectual property and there is an arbitration forum made under this organization where claims can be made at an international level. Further many other legislation have been made to provide remedies.

We know that the Section 28 of the trademarks act provide the exclusive right to the owner of a trademark to use their trademark and prevent others from using it. The National Internet Exchange of India was founded in 2003 to facilitate theproper and enhanced internet services in the country. It also provides some protection for trademark infringement in the cyberspace.

CONCLUSION:

The development of the internet services has changed the face of the world and has affected all aspects of the society. The Domain names have become an important element in the cyberspace and the crimes regarding the same are on the rise in context to trademarks. Therefore, it becomes very important to frame a comprehensive legislation in this regard. Further a gentle balance between the trademark’s rights and freedom of speech over the internet needs to be established.