STEPHEN KOEING Vs. ARBITRATOR NIXI AND ORS.

JUDGEMENT

(1.) The correctness of the judgment of the learned Single Judge in OMP 132/2007 and OMP 928/2011 has been questioned in this appeal, under Section 37 of the Arbitration and Conciliation Act ("the Act"). An award concerning a dispute regarding the domain name 'internet.in' was published dated 05.07.2006 by the learned sole Arbitrator (Respondent No.1 in OMP 132/2007). He was appointed by the National Internet Exchange of India ('NIXI') .

(2.) The expression "internet" owes its origin to the research network called 'Advanced Research Project Agency Network' (ARPANET) established by the United States Department of Defense in the 1970s. That program was meant to link with other Government network. IP is defined by the Shorter Oxford English Dictionary, (5th Ed., p. 405) as "connect or be connected to a computer network; a computer network consisting of or connecting a number of smaller networks, such as two or more local area networks connected by a shared communications protocol." Internet Protocol ('IP') is defined as "a standard that specifies the format and addressing scheme of packets of data sent over the internet or other network." Internet is now a ubiquitous term. It also acknowledges that to access a 'site' on the internet, the user usually has to key in an IP address. This is a combination of four groups of numbers separated by decimals, which is not easy to remember. Domain names, on the other hand, are 'mapped' on to an IP address to facilitate easy access to websites. They ordinarily are concerned with the organization or entity whose website is accessed and can, therefore, be easily recalled. The domain name nic.in specifies it to be that of the National Informatics Centre of the Government of India. A domain name can be divided into levels. Thus, the domain name http//indiancourts.nic.in/', has in the first level, i.e. "indiancourts" which refers to the entity which owns the website, the second level is 'nic' which refers to the entity that hosts the server on which the website is located and '.in' is the top level domain name ('TLD') which in this case is indicative of the geographical location of the website, i.e. India. '.in' is a country code Top-Level Domain ('ccTLD') as contrasted with a generic Top-Level Domain ('gTLD') like '.com' or '.org'. A domain name can only map on to one IP address at a time. With the growing volumes of commercial transactions on the net, the intellectual property rights in domain names have acquired significance.

(3.) Disputes arise over registration of domain names using trade marks that are known and which are in use and may be registered in different jurisdictions. This is because of the system of assigning domain names on a first-come-first-served basis. Not un-often, this policy lends to abuse because those with no connection to established trade marks, or trade dresses, brands, or even prominent individuals, secure registrations. Resultantly, the registrant's website manages to secure internet traffic, as opposed to the customer or internet user whose endeavor is to access the website or domain name of the genuine dealer or retailer, who happens to be the trade mark proprietor of the goods or services. This appropriation through prior registration is referred to as cyber squatting. Such evils resulted in the formation of the Uniform Domain Names Dispute Resolution Policy ('UDRP') due to the joint efforts of the World Intellectual Property Organization ('WIPO') and the Internet Corporation for Assigned Names and Numbers ('ICANN'). The latter is a non-profit organization managing the DNS. The UDRP which was adopted on 24.10.1999, provides for a domain names dispute resolution mechanism before Administrative Panels of the WIPO Arbitration and Mediation Center.