Monday, September 14, 2009

Indian Court Gets Descriptive Domain Name Dispute Right

As a domain name attorney, I see it happen all the time in ICANN UDRP's; the Complainant has registered a descriptive domain name and then complains when someone else registers a similar descripitve domain name. It is a fundamental principle of trademark law, which ultimately governs domain name disputes, that one cannot have a monopoly on a descriptive term as that would prevent people from adequastely describing their goods or services in the most apt language.

In this India High Court decision reported by The Times of India, the Judge eloquently pointed this out in his ruling for the registrant of IndiaProperty.com in a complaint brought by the owner of the pre-existing IndiaProperties.com:

"To provide service/business on estate property, houses and/or related business in India, the domain name referring to words `India' and `property' are very common. No right can be claimed on these words,'' said Justice Anoop Mohta. "Such words cannot be said to be trademark or brandable names. They cannot be claimed/treated as coined names.''


According to the Times of India, the court said there was no question of confusing between the two websites except when using the sites for the first time. "The internet domain name is nothing, but an internet protocol, electronic specified address and a unique identification. Unlike telephone numbers, such IP address basically consists of groups of numbers. Everybody knows the effect of dialling one wrong number,'' said the judge. "The user/customer who wants to do business online, is usually aware of the effect of misspelling a word while opening a site.''

This is a general argument that has succeeded for me in ICANN UDRP's and court cases in Canada, but the 'telephone number' spin is a great new and logical addition. Congratulations to the domain name lawyer who succeeded with this case in India!

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