Domain Name Complaints: Trends and Analysis from the Last 5 Years
Indian Domain Name Dispute Resolution Policy (INDRP) deals with domain name disputes concerning India’s top-level domain namely <.IN> <.CO.IN> and <.BHARAT>. It’s quick and effective mechanism that enables trademark owners to protect their rights and challenge domain name registrations that are identical or confusingly similar to their trademarks.
INDRP is governed by the Indian Registry for Internet Names and Numbers (IRINN) and the National Internet Exchange of India (NIXI), which are authorized entities for domain name registration in India. Process is designed to be swift and cost-effective, and typically takes around two to three months from the time a complaint is filed to the time a decision is reached. A complainant can ask either the domain name to be transferred to him or to be canceled. To be successful, a complainant has to satisfy all the three elements:
First Element: domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
Second Element: domain name registrant has no rights or legitimate interests in the domain name; and
Third Element: domain name has been registered and is being used in bad faith.
Over the years INDRP has been a preferred recourse of brand owners depending on the factual circumstances. In the last five years, from 2018 till 2022, over 600 INDRP complaints have been filed and disposed off. Decisions are made available on www.registry.in. Here are my insights from analysing the data using charts.
Over 100 INDRP complaints are filed annually at NIXI
Each complaint can have only three possible outcomes. Complaint is allowed, denied or terminated. The deciding panel terminates the complaint usually in cases were the dispute is settled or if the complaint is voluntarily withdrawn. I wanted a reference point to make more sense of the volume of INDRPs complaints filed per year. So I compared them with the 10 WIPO ccTLDs which saw the highest number of complaints in the year 2022.
INDRP Complaints have a 95% success rate!
Over the years, most brand owners in an INDRP proceedings have been successful in satisfying all the three elements and thereby getting the relief. Only a handful of trademark owners have failed.
Second Element: the most common reason by brand owners fail
As I said, a brand owner has to satisfy all the three elements else, the complaint is denied. Most of the brand owners who failed, did so because they did not satisfy the second element: that the domain name registrant has no legitimate rights or interest in the domain name.
But a quarter of the failed complainants, did so because the Panel refused to consider the complaint on merits and rejected it. You see, INDRP is designed to address garden-variety cybersquatting cases. Brand owner should not file an INDRP just because that the property at issue is a domain name. When there are wider issues placed before the Panel, the complaint is rejected. These issues, whether characterized as being of a commercial, contractual, or a family law nature, are not suited for resolution under the Policy, which is designed to address clear cases of abusive cybersquatting.
INDRP Panel can impose costs on the registrant
INDRP Panels have imposed costs on registrants in over 70 cases in the last 5 years. The costs imposed so far, have been INR 10,000–30,000 and payable to either the complainant or NIXI. Still, this is unlike the UDRP Panels who do not impose costs. Going through the decisions, it remains unclear if Panels have a yardstick on deciding when to impose costs and whom to award them. It is also questionable how a complainant can recover these costs if the registrant is a typical cyber squatter based outside India.
The only two cases on Reverse Domain Name Hijacking (RDNH)
Using the INDRP in bad faith to attempt to deprive a registered domain-name holder of a domain name can result in a finding of Reverse Domain Name Hijacking in favour of the brand owner. This is basically when a brand owner is found to abuse the administrative proceeding. This is a cardinal sin in domain name disputes, where a brand owner files the complaint primarily to harass the domain-name holder.
UDRP Panels have held brand owners guilty of RDNH in a range of circumstances where-
complainant knew he could not succeed as to any of the required three elements — registration of the disputed domain name well before the complainant acquired trademark rights
the provision false evidence, or otherwise attempting to mislead the panel,
the provision of intentionally incomplete material evidence — often clarified by the respondent,
the complainant’s failure to disclose that a case is a UDRP refiling,
filing the complaint after an unsuccessful attempt to acquire the disputed domain name from the respondent without a plausible legal basis,
basing a complaint on only the barest of allegations without any supporting evidence.
The only two cases where an INDRP panel has found the complainant guilty of RDNH are in <tickets.in> decided on 17th March 2020 and in <computer.in> -this was the 8th INDRP case. In <tickets.in> the Panel found the complainant guilty of RDNH because it had made an attempt to misrepresent the date of use of its mark.
INDRP provides a valuable mechanism for brand owners in protecting trademark rights online. While it is a cost-effective and efficient, it cannot be treated as a real alternative to litigation in all scenarios. Brand owners should look at the conduct of the domain name registrant to decide if it is a fit for INDRP. It is equally important for trademark owners to carefully consider the strength of their case before filing a domain name complaint, as the burden of proof for all the three elements rests on them.
INDRP data source www.Registry.in
UDRP data source www.wipo.int
