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Thursday 13 June 2013

How to design Salary Package

The following are the points are worthy to note before designing the good salary package to an employee.
As said by someone, “tax evasion is a crime but tax planning is inevitable”
Let us proceed to know how to save your salary from the legal burglary! 
1. House Rent allowance [Sec 10(13A)]: HRA granted to an assessee by his employer is exempt to the  extent the least of the following:
a) Excess of rent paid over 10% of salary due for the relevant period; or
b) If the accommodation is in ,Mumbai, Calcutta, Delhi & Chennai – 50% of salary and in any other places – 40% of salary due for the relevant period; or
c) Actual allowance received for the relevant period.
Exemption is not available to an assessee who lives in his own house, or in a house for which he does not pay any rent.
Salary means, basic, DA if provided in terms of employment and commission as a percentage on turnover achieved by the employee.
Individual assessee those who does not have HRA component in his salary package but pays rent  can approach section 80GG of the Act, which gives least of the following as deduction under chapter VI-A
The Rent paid is allowable as deduction to the extent of the least of the following:
a) Excess of rent paid over 10% of total income
b) 25% of total income
c) Rs. 2000 per month
Total income means, gross total income as reduced by deductions under chapter VI-A except 80GG
Conditions to be fulfilled:
1) The assessee should not be in receipt of HRA
2) The assessee, his spouse, or minor child or the HUF in which he is a member should not own any residential accommodation at that place.
3) No claim for self-occupied property should be made in respect of any accommodation.
4) Assessee must file declaration in Form No.10BA wherein he confirms the details of rent paid and fulfillment of the other conditions.(Rule 11B)
  1. 2. Any contribution to an approved superannuation fund by the employer in respect of an employee to the extent if exceeds Rs. 1,00,000 taxable as perquisites.[Sec 17(2)]
  1. 3. Employer Contribution to Recognized Provident Fund in excess of 12% of salary is taxable as salary (Deductible for the employer). The employee’s Contributions also eligible u/s 80C for deductions. The interest credited in excess of 9.5% is taxable as salary. The amount received on retirement is fully exempted u/s 10(12).
  1. 4. The value of any gift, or voucher or token in lieu of which such gift may be received by the employee or by member of his household on ceremonial occasions or otherwise shall be the sum equal to the amount of such gift. If the value of such gift, voucher or token is belowRs. 5,000 in aggregate during the previous year, the value of perquisite shall be taken as “Nil”.
  1. 5. Reimbursement by employer of actual expenditure incurred by an employee for medical treatment in respect of the employee, or any member of the family of such employee, not exceeding Rs. 15,000 in the previous year.[Sec 17(2)]
  1. 6. Free or concessional meal (Rs.50 per meal).
Free meals provided by the employer during the office hours at office or business premises up to Rs. 50 per meal.
Free meals provided though paid vouchers which are not transferable and usable only at eating joints if the value thereof is up to Rs. 50 per meal.
  1. 7. Exempted allowances u/s 10(14)
The following allowances are prescribed by the CBDT under rule 2BB of the Income Tax rules as exempt to the extent spent or specified or specified here below:
  1. A. Any allowance granted and spent to meet the cost of-
a) Travel on tour or on transfer
b) Ordinary daily charges incurred on account of absence from normal place of duty;
c) Conveyance allowance granted to meet the expenditure incurred on conveyance in performance of the duties provided free conveyance is not provided by the employer.
d) Expenditure incurred on a helper in the performance of duties.
e) The academic, research and training pursuits in educational and research institutions.
f)  Purchase or maintenance of uniform for wear during the performance of duties.

  1. B. Any allowance granted to an employee working in any transport system to meet his personal expenses during his duty performed in the course of running of such transport from one place to another place is exempt to the extent of 70% of such allowances or Rs. 6,000 per month whichever less is.
  1. C. Transport allowance granted to employee, who is blind or orthopedically handicapped with disability of lower extremities to meet his expenditure for the purpose of commuting between the place of his residence and the place of his duty to the extent of Rs. 1600/-per month.
  1. D. Transport allowance granted to employee, other than above to meet his expenditure for the purpose of  commuting between the place of his residence and the place of his duty to the extent of Rs. 800/-per month
  1. E. Children education allowance is exempt up to Rs. 100 per month per child up to a maximum of 2 children.
  1. F. Any allowance granted to an employee to meet the Hostel Expenditure of his child is exempt up to Rs. 300 per month per child up to a maximum of 2 children.
  1. G. Tribal area allowance at Rs. 200 per month is exempt if the place of employment is in Assam, Bihar, Karnataka, Madhya Pradesh, Orissa, Tripura, Tamilnadu, Uttar Pradesh and West Bengal.
  1. H. Compensatory Field Area Allowance exempt to the extent of Rs. 2,600 per month.
  1. I. Compensatory Modified Field Area Allowance exempt to the extent of Rs. 1,000 per month
  1. 8. There will be no taxable perquisite in respect of expenses incurred on telephones including mobile phones including mobile phone actually incurred on behalf of the employee by the employer. In other words, if an employer pays or reimburses telephone bills or mobile phone charges of employee, there will be no taxable perquisite.
  1. 9. Perquisite in respect of education facilities: Where the educational institution is maintained and owned by the employer or where such free education facilities are allowed in any other institution by reason on his being in that employment, the value of perquisite shall be determined with reference to the reasonable cost of such education in a similar institution in or near the locality.  However, if the cost of such education or the value of such benefit per child does not exceed Rs. 1,000 per month, nothing shall be taxed as a perquisite.
  1. 10.  Scholarship received by employee’s son from the employer is a perquisite in the hands of employee and the same is exempt u/s 10(16) if the same is not form part of the salary package – CIT vs. B.L.Garg (2007) 289 ITR 218 (All).
  1. 11. Usage of movable assets: If any movable assets owned or hired by the employer are used by the employee or any member of his household, 10% per annum of the actual cost of such asset or the amount of hire charges incurred by the employer shall be the value of perquisite. This does not apply to laptops and computers.
Transfer of movable assets- If the employer transfers any movable asset directly or indirectly to the employee or any member of his household, the amount of perquisite in respect of such assets shall be determined as follows:
Sl. No
Description of the Assets
Rate of Depreciation
Method of Depreciation
1Motor Car20%Reducing Balance Method
2Computer and Electronic Gadgets50%Reducing Balance Method
3Other Assets10%Straight Line Method

Hence, the company may purchase and give the computer/laptop to his employees and then after one year it could be transferred to his name by adopting 50% depreciation rate.

Sale of Immovable Property : Latest Judgment

Sale of Immovable Property : Latest Judgment
I am referring the latest judgment of Supreme Court on the burning issue of transfer of property by way of General Power of Attorney (GPA) / Sale agreement (SA) or Sale contract/ WILL.
This judgment is passed by Hon’ble Justice R.V. Raveendran , Justice A.K. Patnaik & H.L.Ghokhle, in Special leave Petition of  Suraj Lamp &  Industries Vs. State of Haryana, decided on 11th October 2011.
This Judgment is very useful to learn the basics of transfer of property and create awareness among masses in simple language.
Crux of the finding are  as follows  :
1) Transfer of property  by way of Sale Agreement /  General Power of Attorney/ WILL  does not convey any title nor create any interest in an immovable property.  These document does not convey and lawful title.
2) Immovable property can be legally and lawfully transferred / conveyed only by a registered deed of conveyance.
3) Such records like GPA/Sale Agreements/Will  does not from any basis for Mutation in the municipal records and authorities should take a caution before mutation upon such documents.
4) Transfer of property by way of WILL would  also not give much scope to purchaser until the same is not proved in accordance of settled procedure of law and get a proper endorsement of the court. The registration of Will does not alter the situation as well.
5) Court has made it clear that if any development authority or municipal authority has accepted these document for mutation purpose than same should not be disturbed due to this decision.
6) Court has clarified that bonafide transaction should also not be disturbed.
Relevant  Legal Provisions in respect of  registration of  property document :-
1) Registration Act, 1908 by Amendment Act 48 of 2001 has made the provision that documents containing contract of transfer for consideration (Sale agreement) relating to any immovable property should be registered.
2) Section 32 (3) of Registration Act,, 1908 has specific provision that a POA for sale of immovable property should also be registered with registrar or sub registrar of relevant jurisdiction.
3) Section 54 of the Transfer of Property Act, 1882 defines that any property of more than 100 Rupees value can be transfer by a Registered deed only.
4) Section 53 A of Transfer of Property Act, 1882 speaks about the  part performance of the a written contract where seller has handed over the possession of property to buyer but the deed is not registered then the possession holder can enjoy the limited rights of the property but the this section read with latest amendment of Registration Act under section 17 (i(A))  which says that document containing contracts to transfer for consideration , any immovable property for the purpose of Section 53 A of Transfer of Property Act shall be registered otherwise such document if executed after 2001 shall have no effect for the purpose of part performance secured under section 53 A of TP act.
5) Section 27 of Indian Stamp Act lays down the obligation to pay eligible stamp duty on the conveyance deed. Article 23  of Stamp Act lays down the sale acknowledging delivery of the possession or power of attorney authorize to sell any immovable property are charged with sale duty as leviable on conveyances.
Benefits of Registration :
- Registration of  a document gives notice to the world that such a document has been executed.
- Registration provides safety and security to transactions relating to immovable  property, even if the documents is lost or destroyed.
- It gives the public exposure to a property transaction.
- Gives information to about the property to people dealing with that.
- Makes the property title  search easier.
(Other Cases of reference :  Narandas Karsonda V. S.A. Kamtam And Anr. (1977) 3 SCC 247. Rambaran Prosad V. Ram Mohit Hazar (1967)1 SCR 293. )

Communication with Client

Whether you are running your own business or working in corporate, you often deal with clients. Clients are backbone of any business, so it is important to have good communication with them. Here are three points you should take care while communicating with your clients:

1. Develop comfort level: Client may not care about how much you know or how good your services or products are unless he/she has good comfort level with you. Comfort level means you have friendly behavior and your client feels welcome in your presence.

Let me just remind you it happens sometimes we share few thing with our friends but not with our parents or siblings. The only reason for this is we have very good comfort level with our friends. So if you want to have repeat business from a client or you want your client to refer you to other people, maintain good comfort level with clients.

2. Help to find result: Sometimes a prospective client approaches me telling that she/he wants to go for personality development course. When I do litter question answer session with him/her, I find client is actually looking for spoken English course.

You client is not an expert to give you his or her exact requirement. So it is always the best approach to ask meaningful question, so that you can understand exact requirement of your client. If you want to serve a client without understanding actual need of the client, you will surely spoil your relationship with the client. Hence it is your duty to help client to know what he actually wants.

3.Communicate in challenges in advance: Neither your boss or nor your client will tolerate a sudden bad news. Suppose you are supposed to deliver a project/report on 25th June and this assignment was given to you on 1st June; on 15th June you came to know that project would be delayed by one week.

You were aware on 15th June that project would be delayed; you could have informed your management or client about the same on the same day. Another approach is you inform your client or management on 24th about the same.

If you inform them on 24th, your boss or client can hardly do anything except shouting at you. Had you informed the delay on 15th itself, client or management would have made some alternative arrangement. Situation would have been under control had they got information in advance.

By: Yogesh Vermani

About Author:

Yogesh is working as spoken English and career development trainer. He helps job seekers and working professional to develop Spoken English, good communication and other soft skills like confidence, time management, Interview skills etc. He is writer of “Speak English Like a Star” (A book meant for beginners of English).

Government declares war against huge backlog of court cases

New Delhi, Oct 25 The central government Sunday declared a war against huge backlog of over 31 million court cases, finalising an ambitious scheme to appoint 15,000 trial court judges and 700 high court judges on contract for two years to work in three shifts to eliminate arrears within three years.
The Congress-led United Progressive Alliance government finalised this ambitious scheme at the end of a two-day “National Consultation for Strengthening the Judiciary Towards Reducing Pendency and Delays”. Law Minister M. Veerappa Moily organised it with active participation of Chief Justice of India K.G. Balakrishnan and Finance Minister Pranab Mukherjee.
At its conclusion, the seminar adopted the law ministry’s “vision statement”, which finalised a multi-pronged scheme to eliminate the staggering backlog of court cases.
The schemes ranged from evolving a National Litigation Policy to make the government shed its dubious tag of being the largest litigant and transform it into “a responsible and reluctant litigant from a compulsive one”. It also sought establishing a National Arrear Grid for scientific monitoring of pending cases and to reduce time taken in their adjudication at various levels.
During the seminar, the judiciary, led by Chief Justice Balakrishnan and the Supreme Court’s second senior most judge, Justice S.H. Kapadia, made a vehement demand for a hike in court fees, specially in corporate and business matters, for better funding of the judiciary.
Moily readily acceded to the demand and promised requisite legislative or executive steps for the purpose.
The judiciary also demanded establishment of commercial courts in Delhi, Mumbai, Kolkata and Chennai, and the law minister said the bill for the purpose would be introduced in the forthcoming winter session of parliament.
As per the vision statement, retired judges and senior lawyers would be appointed as ad hoc judges for a limited period of one to two years on contract on a consolidated honorarium of Rs.50,000 or more a month.
These judges would work in three shifts, with the night shift judges often working till midnight to decide cases so that the pendency of cases is brought down from 15 years to three years.
The vision statement envisaged this radical scheme would reduce the backlog of cases to three-year pendency period by Dec 31, 2011. A status report on the goals achieved will be submitted to the prime minister on Jan 31, 2010.
At present, there are 2.7 crore (27 million) cases pending with the trial courts, the lowest rung of judiciary, where the sanctioned strength of judges for these courts is 16,721.
The high courts have a sanctioned strength of 886 judges, and are grappling to deal with a pendency of 40 lakh (4 million) cases.
The Supreme Court has around 53,000 cases pending, and the sanctioned strength of 31 judges to deal with these.

Mere Expression Of Regret Cannot Be Interpreted As Admission

Chennai: Can a mere expression of regret by employees be construed as admission of guilt and the worker concerned be dismissed from service? No, the Madras high court has ruled.
Justice KK Sasidharan, directing the reinstatement of three industrial workers dismissed from service 17 years ago, said: “Admission (of guilt), to be used against the maker, should be clear, unambiguous, unequivocal and without any scope for two interpretations. It should lead to a clear conclusion ofadmission.”
The judge was passing orders on the writ petitions of three persons, who had challenged a labour court order upholding their dismissal from service.
Justice Sasidharan also flayed the Tiruchi labour court for having adopted a “strange” and “novel” procedure of marking statements without the concurrence of the parties, and faulted the forum for having concluded that their dismissal was fair as they had “admitted” to their role in an industrial unrest in 1997.
In 1992, a Viralimalai- based company introduced an incentive scheme, which was perceived as non-beneficial to workmen. There was an industrial disturbance and production came to a standstill. Three union leaders — R Govindarajan, M Rajadurai and P Kanagaraj — held talks with the employees and then convinced them to return to work. By the time the workers decided to return to work, half a day’s production was affected, and the management held them responsible for the unrest.
Replying to show-cause notices, the three explained the sequence of events and, at the end of their reply, expressed their regret. Treating the expression of regret asadmission of guilt, the management dismissed them from service, without notice or inquiry.
In January 1996, the Tiruchi labour court upheld their dismissal.
Justice Sasidharan, reiterating that there should be an “express declaration” to qualify as admission of guilt, said, “it is not possible to infer admission from a statement.”
It will be cruel to allege that these three union leaders incited the employees when it was they who urged the workers to resume work, the judge said, adding that the management was determined to terminate the services of these union leaders.
Though payment of backwages is not automatic in case of an order of reinstatement, Justice Sasidharan directed the company to pay full backwages and other attendant benefits for the entire 17-year period. In this regard, he pointed out that the petitioners were out of employment for 17 years and that they were not gainfully employed elsewhere. There was no history of misconduct alleged against them and the company is making profits, he said.
Under these circumstances, the company shall reinstate the three in service and pay them full backwages and continuity of service within two months,the judge said.

Online infringement of Trademarks

Introduction :

Cyberspace is a virtual world, which exists only in computer memory, but it is interactive and pulsing with life. In cyberspace, one can meet and talk to new people, read, publish, research, hear music, see video, look at art, purchase and sell things, access government documents, send emails, download software, and receive technical support. Cyberspace is a living organism, constantly changing, as more information is uploaded, downloaded, as more people join the pioneers of this brave new world. Our laws have yet to catch up with it. This is not necessarily a bad thing; the law tends to lag behind the social changes, and then resolve itself accordingly. While this new frontier will never stop evolving, perhaps it is still too much in its infancy for us to determine how to regulate it. But as it becomes more integrated into (integral to) our daily lives, many are becoming concerned with defining acceptable behavior in this new landscape.[1]

Trademarks have existed as long as the trade itself. Once human economies progressed to the point where a merchant class specialized in making goods for others, the manufacturers and the sellers of the goods began to mark their wares with a word or symbol to identify the maker. Consumers rely most on trademarks when it is difficult to inspect a product quickly and cheaply to determine its quality.[2] Electronic commerce or trading through the internet has become a reality and is here to stay. This means that every future minded business should at least have a makeshift internet access point. Thus it is imperative that a common businessman would be as much apprehensive about the trademark infringement on internet/virtual world as he is outside it[3]. Thus in this era of information technology it becomes pertinent to address this issue of online infringement of trademarks with utmost care and lay out the vulnerable areas where the encroachers can easily spot the loop hole and thereby exploiting it and causing great financial loss to big business houses. This is the main focal point of this paper along with mentioning the possible solutions with respect to the contemporary legal framework.

What is Trade Mark?

Trade mark is defined under section 2(1)(zb) of the Trade marks act, 1999. Basically it means that a mark capable of being represented graphically and which is capable of being distinguishing the goods or services of one person from those of others and may include shape of goods , their packaging and combination of colours. The purpose of the Tm law is not to confer a monopoly on a right to use a specific word or symbol, instead it allows the first user to have some exclusive rights, which in effect exclude some other entities from adopting a similar work.  

The impact of trade marks on the internet:
Consumers rely on the strong brand presence and brand performance for the confidence to engage in e-commerce. While trade marks are of great importance in this virtual environment, they are more the less more vulnerable to infringement, dilution and anti-competitive practices. Trademark owners expend vast resources, engaging automated ‘web crawling’ software and cyber surveillance firms to monitor billions of web pages and protect their intellectual property rights.[4]

The traditional method of resolving legal conflict- court litigation- is largely organized on territorial basis. Each country has its own courts, which may be called upon to rule upon disputes falling under their jurisdiction, mostly on the basis of the application of local laws. The territorially based dispute resolution model faces a number of challenges when applied to disputes arising on the internet, where activity occurs with little regard for physical boundaries. Indian courts have been extremely vigilant in protecting the interests of the trademark owners. There are some lessons to be learnt from the Indian experience.[5]
The convergence of the computer networks and telecommunications facilitated by the digital technologies has started a new ‘digital era’. There is hardly any digital activity which has been remained untouched by the digital era through internet. The cyber manthan has bestowed many gifts to humanity but they have come with unexpected pitfalls. The emergence of the internet as a tool of e-communication and e–commerce has resulted in complex intellectual property issues. Each sunrise seems to be bring with it yet another change in the legal landscape of this unchartered   multi dimensional world evolving beyond the monitor screen.[6]

The scope of trade marks right with reference to the global effect:

The scope is determined not only by defining when such right is infringed, but also by specifying the remedy available to such right holder when an infringment has taken place. The most pertinent question that stands before us all is  : if a trade mark right has been infringed by the use of the sign on the internet, the question arises whether its owners its owner should be able to demand , with the help of the courts, that the defendant cease every use of the sign through the internet?[7]

Such an injunction would have an effect which would be as global as the internet itself. If the traditional trademarks law is to be translated into the cyberspace, a national and thus territorially limited, trade mark right should not give rise to an exclusive right throught the world wide expanse of this medium. It would, therefore, be appropriate if all available remedies were, as far as possible, limited to a territory for which the owner holds the exclusive right. Courts might have to take a creative approach in framing equitable relief, such as obliging the user of the sign on the internet to take reasonable measures for avoiding contracts with the territory in which the trade mark owners holds an exclusive rights.[8] This could be effected, for example by placing adequate statements on the website
( ‘Disclaimers’ as above) , by using the technical mechanisms to block access by the internet users located in a particular territory,. Concurrent users could also be encouraged to share a common gateway.

Trade marks and domain names: 

A domain name is part of the address of the location of a site on the internet. For instance harrods.com is the domain name of the London department store, Harrods. While TM have been around for a long time, domain names are comparatively a recent phenomenon attracting public attention only since the rise in popularity of the internet. The legal interface between the domain name and the TM has been the subject of much analysis. When the potential for conflict between the two first arose, there was there was the potential for a wave of cross border litigation as TM owners and the Domain name holders battled for the control of the domain names.[9]

Disputes over ownership of the domain names have arisen for a number of reasons. The domain name has been considered as akin to a trade mark. Therefore those who own the mark for the no-internet business wish to use the same name on the internet; it is seen as a valuable addition to the branding of goods or services or the business as a whole. Trade mark law is territorial whereas internet is global. Therefore, different business trading under the same mark in various parts of the world may have what they consider to be the same legitimate claim to a particular domain name. as no domain name can be identical therefore only one business house can have a particular name.


The registration of a domain name as a trade name:

In UK, the question of whether an internet address which includes ‘www’(as opposed to a domain name) can be registered as a TM has been considered in National Mantgomery securities LLC’s application case[10]where the application by nationsbanc to register http:// www.primebroker.com  in connection with goods and services in class 9(computer hardware and software) was refused on the grounds that it was devoid of distinctive character. The appeal was dismissed. It was found that the TM as a whole represented an email address. The element ‘www’ represented the ’world wide web’ and ‘.com’ a top level domain name. the whole sign was likely to be seen as an electronic mail address for a broker engaged in the services set out in the application and not in any way distinctive.
Despite this ruling, domain names have been registered as TMs, albeit with the added material rendering the domain name distinctive.


Why TM needs to be protected?

The reality of the Indian customers is evident in India. They do not trust the neophyte products that are basically advertised on the internet. Thus the protection needs to be accorded to the big brands of the market so that some one does not misuse the goodwill of their name and fame for making undue profits. Brands have proven to be a survival kit on the internet. Yet just a few companies have managed to gain leverage from the value of their brands and taken those benefits on the internet. There is close relationship between intellectual property and the internet, both in terms of the technical infrastructure and the products traded on it. The aspects of the internet infrastructure which could appropriately be subject to exclusive proprietary rights also is subject of constant debate and discussion.[11] in light of these deep ties between the intellectual property and the internet, the question has arisen whether any private international law regime for the internet could be deemed complete if it does not also address intellectual property issues.
Trademarks issues have been addressed under the lanham act’s remedies for traditional infringement. While the lanham act is still used, it applies only in the united states and does not assist in detecting infringement. Thus the companies have developed the software bots( software robots and software agents – to counter practices such as cyber squatting, metatags, etc legitimate trademarks and domain name owners frequently use “ software robots to locate third party unauthorized use of a company’s trademark)  to detect infringement and in late 1999, two additional avenues of resolution became available to the domain name registrants : (1) The international uniform dispute resolution policy (UDRP) developed by the internet corporations for assigned names and numbers( ICANN) in October 1999 and the (2) the US anti cyber squatting consumer protection act developed in November 1999.[12] 

Online infringement of Trade marks with the tool of cybersquatting, metatags[13],Linking, Spamdixing, Spoofing and others:

CybersquattingSome enterprising persons registered the names or the trade marks of the well known companies as domain names, with the sole intention of selling the names back to the companies when they finally woke up. Panasonic, tata, bennet & coleman and avon were among the “victims” of cyber squatting. This practice has reaped rich dividends for some who rushed madly to register TMs or names close to TMs and then demand high price to sell these domain names back to the interested companies. As already mentioned there is no connection between the trade mark registration and domain name registration. This lack of connection has been exploited maximum by the cybersquatters. The first come, first –served, nature of domain name is registered by someone with the sole purpose of selling it at a premium to a trade mark owner.
It occurs when a person hoping to sell the registration to the corresponding TM holder registers domain names holding the resemblance to the famous trade marks. Typically in such cases, persons who have absolutely nothing to do with the name, virtually pirate the name by obtaining a .com registration of a well known company or a brand. Countries like US,UK,india[14], Canada and New Zeland has cases decided upon this.

Metatag is the keyword embedded in a website’s HTML code as a means for internet search engines to categories the contents of the website. Metatags are not visible on the website itself( although they can be made visible together with the source code of this page)#.  The more often a word appears in the hidden code, the higher a search engine will rank the site in its search result. In various jurisdictions, trademarks owners have challenged the unauthorized use o their TMs as a metatag.

Metatag are invisible to the internet user and present no legal issues when used properly. Problems may arise, however if someone, uses metatags incorporating the trade marks or trade names of the competitors to lure customers to their sites, or if famous marks or names are gratuitously included in the metatags to attract visitors to sites having nothing to do with those names and marks. [15]

In Niton corp v Radiation Monitoring devices  inc[16] lays out how the competitors name can be used in the metatags.  In the recent case, the defendant used the plaintiff’s business name. the effect of the same was that when some lay consumer used to search for the plaintiff’s company on the search engine what followed after that is, most of the ‘hits’ which would confuse the web user and creates a dilemma as to the official site of the plaintiff’s company with that of the defandant’s company. Thus the court held that every time the user enters the name of the product of the plaintiff’s company, or the name of the plaintiff’s company or any of the services provided by the plaintiff’s company the user is mislead by the site of the defandant’s company. The court entered the prim nary injunction subject to modifications prohibiting defandants from using deceptive methods to lure customers to its website.

Linking: linking is a process whereby a user connects from one side of the internet to another site by clicking on a designated speace on the initial site( hyperlink) which then connects the user to the other site. It is one of the most useful aspects for the internet users, because it permits users easily to navigate the internet without needing repeatedly to type website adresses or search terms.

Spamdexing: this words comes from a combination of spam and indexing. Here, either the company’s trademark is placed in the text of the web page instead of in the metatag, or placed in white print text so that it is technically part of the web page, but not visible to readers. Either way the option of the spamdexing is to cause search engines to find the web sites based on the popularity of the trade mark and thus give a website a higher “ hit-rate” than it would normally have. This places it on the top of the list in a response to an internet search, and based on its position of likely option drives additional traffic to the sides.[17]

Spoofing : A web user which has an email-id sometimes may discover an unwanted message from some undesirable site for example some pornographic site, such mails are called spams and now a days most of the websites provide for the filters which automatically junk these mails. But sometimes these blocked sites with the help of this method where they use the name of some well established web sites so that these mails can easily pass through the filters. The method is known as spoofing. Here one web site acquires the identity of another web site. 

Framing : Another novel issues that has emerged is framing, which allows a web page developer to build a frame or a border of text, or graphics on its own site and pull a webpage from another site into the frame or border, thus allowing it to offer the other site’s context within the frame on the developer’s own site.[18]Framing creates significant legal issues because it enables operators to create a new page that may eliminate content, advertising and even the site identifier from the framed page.[19]

Jurisdiction issue and protection accorded to the TM owners:

With the shrinking of global marketplace and advancement in communication technologies, the biggest issue that has arisen is to determine accurately the appropriate jurisdiction in a particular transaction. The insensitive nature of the internet to local constraints is the basis of all the jurisdictional problems. This issue can be illustrated with the help of the example : take a situation where the same trademark is owned and used by independent companies in the US and each company has a website (‘philips.com and philips.co.uk) which provides information about the company and its product, and which features prominent use of the mark. Moreover, one or both the companies offer goods or services for sale on their respective websites. Obviously both the websites can be accessed by the internet user from anywhere in the world, raising the possibility that someone in UK using the website of the UK company will encounter the website of the US company, and vice-versa.  Here the trademark issue arises whether the use of the trade mark by the US company on its US website constitute the infringement of the trademarks of the UK company.[20]

This is one of the most pertinent issue where there is still some space is left for the improvement. When a crime is being committed on the internet than it becomes really tough for the court to determine whether it has jurisdiction or not. In such circumstances what is taken into consideration is that whether the person or the company or any corporate body in question is related in some way or the other to the court. Basically there are two types of jurisdiction involved here, namely, the personal jurisdiction and the specific jurisdiction.

There are three criteria to determine whether the case falls under the personal jurisdiction or not :
(1) residence (2) incorporation  (3) ownership of the property in the state.
If the case falls under any of the above heads than the personal jurisdiction can be evoked. The three elements to determine the specific jurisdiction are :
(1) The claim must directly arise out of non resident’s activities in the forum state.
(2) the contacts must represent the “ purposeful availment” of the privilege of conducting activities in the forum state.
(3) The exercise of jurisdiction must be reasonable. Basically most of the cases that have been decided on online infringement of trademarks have been under the personal jurisdiction.

The Paris convention for the protection of the industrial property establishes a norm requiring the protection of trade names in all state party to the convention.[21] These norms were adopted by many nations in the form of the municipal laws in order to implement the recommendations of the Paris convention. Also, world intellectual property organization (WIPO) role in domain name management can not be sidetracked. One of the most crucial steps towards upholding the Protection of IPR by WIPO is publication of the interim report on 23rd December, 1998 whereby it contained interim recommendations regarding formal domain name registration agreement. It defines the rights and responsibilities of the registration authority, on the one hand and the domain name applicant on the other.


Alternate dispute resolution: Effective mode of dispute resolution:-

ADR( alternate dispute resolution) has, however, traditionally played only a modest role in the resolution of the intellectual property disputes. This has to do with the fundamentally territorial nature of intellectual property rights which are in principle, only granted for and protected in individual countries. ADR is however gaining increasing importance in IPR disputes filed with institutional ADR providers such as WIPO arbitration and mediation centre. In addition, courts cannot always respond to the efficiency demands of intellectual property rights owners, who can hardly afford to divert scarce resources in terms of time and money to lengthy litigation.[22]

Since court procedures are generally public, they provide few means of responding to the particularly sensitive confidential information involved in the intellectual property rights matters. And also the disputes are not always readily available within the national court system.

Thus on the brighter side the ADR proceedings allow the parties to avoid all these stumbling blocks. It also takes care of the confidentiality issues of the party and can deal with the multi jurisdictional issues. Though it doesn’t turns out to be fruitful in the cases of the extra- contractual disputes.[23]  The UDRP provides a single forum for the resolution of the dispute that would otherwise present difficult issues of international jurisdiction because of the likelihood of the parties based in different jurisdiction and that trademarks protected in several countries are involved. The UDPR also establishes a single set of rules for the administration as well as for the decision on the dispute and does not rely, in principle, on the municipal laws.[24]

 The UDRP does not attempt to resolve disputes between the parties that both hold a right  or legitimate interest in the domain name. such dispute requires a much more assessment of rights and interest involved and do not lend themselves easily to streamlining and standardizing, especially in the international context. Also contributing to the overall efficiency of the UDPR model is the fact that the remedies are limited to cancellation and transferring of the domain names that are directly enforceable in the domain name system and that panels cannot award monetary damages which would have to be enforced by the public means.

Viewpoint of the court in the cases of online infringement of TM:

Mere registration of the well known TM as domain name could give rise to the liability for the passing off. In appropriate circumstances, registration of the domain name can itself constitute an instrument of deception or fraud, leading to the liability of the passing off. ( British telecommunication. Inc vs.  west coast entertainment corp[25].,- the us court of appeals, ninth circuit confirmed that a comparison between the alleged infringing domain name and the registered trademark is relevant. The court emphasized on the eighth factor test used for determining whether confusion exists:  the similarity of the marks, the relatedness and proximity of the products or services, the marketing channels, the strength of the claimant’s mark, the defendants’ intention in selecting its mark, evidence of actual confusion, likelihood  of expansion into other product lines.)

The use of another’s TM in the domain name is allowed where the domain name itself does not give rise to the confusion. (Howitt Debroh, war.com : why the battles over domain names will never cease? Hastings communication and entertainment law journal.
Due to the peculiar nature of the domain name system identical names cannot exist. In such types of cases both the parties have historical connection to a mark and find themselves confronted with a domain name conflict. Subject to any dilution claim that a senior user may have, it has been the tendency of the courts in such cases to find no likelihood of confusion where both the parties have historical connection to mark and they operate in different industries. (interstellar starship services ltd vs. Epix inc[26].)

In Bawa Masal company vs. Bawa masala company Pvt. Ltd & Anr[27], at the request of the parties the court permitted a novel form of the alternate dispute resolution mechanism known as Early Neutral evaluation(ENE). Though it is not one of the models of the ADR mentioned under section 89 of the CPC, considering the objects of the section, the court permitted ENE and directed that its result-success or failure- should be communicated to the court. It is an technique used in the American litigation to provide early focus to complex commercial litigation, and based on that focus provides sensible case management or offer resolution of the entire case in the early stage.[28]

The above case is evident of the innovative steps that Indian courts are not afraid of taking. Because of the major jurisdictional issue there is an instant need of the dispute resolution policies and if the dispute is of grave nature than only the recourse of the courts can be taken.  Due to the lack of the geographical boundaries on the internet there lies disputes and the different mechanism of dispute resolution are under the process of evolution and there is no straight jacket formula to resolve the dispute and it depends on the gravity of the dispute along with another major considerations such as whether the party was ‘in contact’ to the court to the forum or not? What was the nature of infringement? What repercussion the claimant party had to suffer or the possible damages that can accrue because of such infringement? Is there any scope of settlement between the parties as such or not? With the advancement in the field of technology, it seems that our society also needs advancement and innovation in the field of law. America has shown the way for most of the countries by enacting the anti cyber squatting act, 1999 and also the Lehman’s act that is in force since 1947, thus providing comprehensive and total protection to the intellectual property rights owners and thus managing this issue of vast and critical consideration in one of the most lucid ways. India though has passed the It Act, 2000 but certain measures with respect to the protection of trade marks have to be still taken into consideration when in the recent times there have been blatant violation of the trademarks through the online medium have taken place. The Indians are still dependent upon the archaic Indian penal code and still within 10 years of its inception the protective measures granted under the IT act are in question.


Conclusion:

The network of computer networks aptly called the internet, which had a modest beginning, has grown by leaps and bounds. The growth of the internet has been explosive ; the number of internet users has doubled approximately every year since its introduction. Thus it can be inferred that the crime rate is booming with double alacrity. And thus to protect the interest of the thousands of innocent potential victims it is pertinent that protective laws should keep up with the number of crimes. But regrettably it is not even sufficient to curb the half of the cyber crimes.  There is appalling need for a Legislations like anti cybersquatting consumer protection act in India. Though the first step with respect to stop the cyber crimes was taken in 2000 but ten years from then the situation has worsened and the cyber thugs are easily able to spot out the loop holes in the neophyte legislation. There are problems relating to the regulation of the domain names, the jurisdiction, express provisions of law to normalize the crime rate on internet. Thus there is need of express provisions in the IT act 2000 with respect to the protection of such intricate cyber crimes that contains provision with respect to the jurisdiction and also the recommendations that were laid down in the WIPO’s interim report in 1998 has to take the shape of the municipal law. A good new beginning has been made with the implementation of the information technology act. This advantage should be consolidated and if we do not act with purpose, all our initial gains would be frittered away. To be succinct there is no time to waste.
Introduction :

Cyberspace is a virtual world, which exists only in computer memory, but it is interactive and pulsing with life. In cyberspace, one can meet and talk to new people, read, publish, research, hear music, see video, look at art, purchase and sell things, access government documents, send emails, download software, and receive technical support. Cyberspace is a living organism, constantly changing, as more information is uploaded, downloaded, as more people join the pioneers of this brave new world. Our laws have yet to catch up with it. This is not necessarily a bad thing; the law tends to lag behind the social changes, and then resolve itself accordingly. While this new frontier will never stop evolving, perhaps it is still too much in its infancy for us to determine how to regulate it. But as it becomes more integrated into (integral to) our daily lives, many are becoming concerned with defining acceptable behavior in this new landscape.[1]

Trademarks have existed as long as the trade itself. Once human economies progressed to the point where a merchant class specialized in making goods for others, the manufacturers and the sellers of the goods began to mark their wares with a word or symbol to identify the maker. Consumers rely most on trademarks when it is difficult to inspect a product quickly and cheaply to determine its quality.[2] Electronic commerce or trading through the internet has become a reality and is here to stay. This means that every future minded business should at least have a makeshift internet access point. Thus it is imperative that a common businessman would be as much apprehensive about the trademark infringement on internet/virtual world as he is outside it[3]. Thus in this era of information technology it becomes pertinent to address this issue of online infringement of trademarks with utmost care and lay out the vulnerable areas where the encroachers can easily spot the loop hole and thereby exploiting it and causing great financial loss to big business houses. This is the main focal point of this paper along with mentioning the possible solutions with respect to the contemporary legal framework.

What is Trade Mark?

Trade mark is defined under section 2(1)(zb) of the Trade marks act, 1999. Basically it means that a mark capable of being represented graphically and which is capable of being distinguishing the goods or services of one person from those of others and may include shape of goods , their packaging and combination of colours. The purpose of the Tm law is not to confer a monopoly on a right to use a specific word or symbol, instead it allows the first user to have some exclusive rights, which in effect exclude some other entities from adopting a similar work.  

The impact of trade marks on the internet:
Consumers rely on the strong brand presence and brand performance for the confidence to engage in e-commerce. While trade marks are of great importance in this virtual environment, they are more the less more vulnerable to infringement, dilution and anti-competitive practices. Trademark owners expend vast resources, engaging automated ‘web crawling’ software and cyber surveillance firms to monitor billions of web pages and protect their intellectual property rights.[4]

The traditional method of resolving legal conflict- court litigation- is largely organized on territorial basis. Each country has its own courts, which may be called upon to rule upon disputes falling under their jurisdiction, mostly on the basis of the application of local laws. The territorially based dispute resolution model faces a number of challenges when applied to disputes arising on the internet, where activity occurs with little regard for physical boundaries. Indian courts have been extremely vigilant in protecting the interests of the trademark owners. There are some lessons to be learnt from the Indian experience.[5]
The convergence of the computer networks and telecommunications facilitated by the digital technologies has started a new ‘digital era’. There is hardly any digital activity which has been remained untouched by the digital era through internet. The cyber manthan has bestowed many gifts to humanity but they have come with unexpected pitfalls. The emergence of the internet as a tool of e-communication and e–commerce has resulted in complex intellectual property issues. Each sunrise seems to be bring with it yet another change in the legal landscape of this unchartered   multi dimensional world evolving beyond the monitor screen.[6]

The scope of trade marks right with reference to the global effect:

The scope is determined not only by defining when such right is infringed, but also by specifying the remedy available to such right holder when an infringment has taken place. The most pertinent question that stands before us all is  : if a trade mark right has been infringed by the use of the sign on the internet, the question arises whether its owners its owner should be able to demand , with the help of the courts, that the defendant cease every use of the sign through the internet?[7]

Such an injunction would have an effect which would be as global as the internet itself. If the traditional trademarks law is to be translated into the cyberspace, a national and thus territorially limited, trade mark right should not give rise to an exclusive right throught the world wide expanse of this medium. It would, therefore, be appropriate if all available remedies were, as far as possible, limited to a territory for which the owner holds the exclusive right. Courts might have to take a creative approach in framing equitable relief, such as obliging the user of the sign on the internet to take reasonable measures for avoiding contracts with the territory in which the trade mark owners holds an exclusive rights.[8] This could be effected, for example by placing adequate statements on the website
( ‘Disclaimers’ as above) , by using the technical mechanisms to block access by the internet users located in a particular territory,. Concurrent users could also be encouraged to share a common gateway.

Trade marks and domain names: 

A domain name is part of the address of the location of a site on the internet. For instance harrods.com is the domain name of the London department store, Harrods. While TM have been around for a long time, domain names are comparatively a recent phenomenon attracting public attention only since the rise in popularity of the internet. The legal interface between the domain name and the TM has been the subject of much analysis. When the potential for conflict between the two first arose, there was there was the potential for a wave of cross border litigation as TM owners and the Domain name holders battled for the control of the domain names.[9]

Disputes over ownership of the domain names have arisen for a number of reasons. The domain name has been considered as akin to a trade mark. Therefore those who own the mark for the no-internet business wish to use the same name on the internet; it is seen as a valuable addition to the branding of goods or services or the business as a whole. Trade mark law is territorial whereas internet is global. Therefore, different business trading under the same mark in various parts of the world may have what they consider to be the same legitimate claim to a particular domain name. as no domain name can be identical therefore only one business house can have a particular name.


The registration of a domain name as a trade name:

In UK, the question of whether an internet address which includes ‘www’(as opposed to a domain name) can be registered as a TM has been considered in National Mantgomery securities LLC’s application case[10]where the application by nationsbanc to register http:// www.primebroker.com  in connection with goods and services in class 9(computer hardware and software) was refused on the grounds that it was devoid of distinctive character. The appeal was dismissed. It was found that the TM as a whole represented an email address. The element ‘www’ represented the ’world wide web’ and ‘.com’ a top level domain name. the whole sign was likely to be seen as an electronic mail address for a broker engaged in the services set out in the application and not in any way distinctive.
Despite this ruling, domain names have been registered as TMs, albeit with the added material rendering the domain name distinctive.


Why TM needs to be protected?

The reality of the Indian customers is evident in India. They do not trust the neophyte products that are basically advertised on the internet. Thus the protection needs to be accorded to the big brands of the market so that some one does not misuse the goodwill of their name and fame for making undue profits. Brands have proven to be a survival kit on the internet. Yet just a few companies have managed to gain leverage from the value of their brands and taken those benefits on the internet. There is close relationship between intellectual property and the internet, both in terms of the technical infrastructure and the products traded on it. The aspects of the internet infrastructure which could appropriately be subject to exclusive proprietary rights also is subject of constant debate and discussion.[11] in light of these deep ties between the intellectual property and the internet, the question has arisen whether any private international law regime for the internet could be deemed complete if it does not also address intellectual property issues.
Trademarks issues have been addressed under the lanham act’s remedies for traditional infringement. While the lanham act is still used, it applies only in the united states and does not assist in detecting infringement. Thus the companies have developed the software bots( software robots and software agents – to counter practices such as cyber squatting, metatags, etc legitimate trademarks and domain name owners frequently use “ software robots to locate third party unauthorized use of a company’s trademark)  to detect infringement and in late 1999, two additional avenues of resolution became available to the domain name registrants : (1) The international uniform dispute resolution policy (UDRP) developed by the internet corporations for assigned names and numbers( ICANN) in October 1999 and the (2) the US anti cyber squatting consumer protection act developed in November 1999.[12] 

Online infringement of Trade marks with the tool of cybersquatting, metatags[13],Linking, Spamdixing, Spoofing and others:

CybersquattingSome enterprising persons registered the names or the trade marks of the well known companies as domain names, with the sole intention of selling the names back to the companies when they finally woke up. Panasonic, tata, bennet & coleman and avon were among the “victims” of cyber squatting. This practice has reaped rich dividends for some who rushed madly to register TMs or names close to TMs and then demand high price to sell these domain names back to the interested companies. As already mentioned there is no connection between the trade mark registration and domain name registration. This lack of connection has been exploited maximum by the cybersquatters. The first come, first –served, nature of domain name is registered by someone with the sole purpose of selling it at a premium to a trade mark owner.
It occurs when a person hoping to sell the registration to the corresponding TM holder registers domain names holding the resemblance to the famous trade marks. Typically in such cases, persons who have absolutely nothing to do with the name, virtually pirate the name by obtaining a .com registration of a well known company or a brand. Countries like US,UK,india[14], Canada and New Zeland has cases decided upon this.

Metatag is the keyword embedded in a website’s HTML code as a means for internet search engines to categories the contents of the website. Metatags are not visible on the website itself( although they can be made visible together with the source code of this page)#.  The more often a word appears in the hidden code, the higher a search engine will rank the site in its search result. In various jurisdictions, trademarks owners have challenged the unauthorized use o their TMs as a metatag.

Metatag are invisible to the internet user and present no legal issues when used properly. Problems may arise, however if someone, uses metatags incorporating the trade marks or trade names of the competitors to lure customers to their sites, or if famous marks or names are gratuitously included in the metatags to attract visitors to sites having nothing to do with those names and marks. [15]

In Niton corp v Radiation Monitoring devices  inc[16] lays out how the competitors name can be used in the metatags.  In the recent case, the defendant used the plaintiff’s business name. the effect of the same was that when some lay consumer used to search for the plaintiff’s company on the search engine what followed after that is, most of the ‘hits’ which would confuse the web user and creates a dilemma as to the official site of the plaintiff’s company with that of the defandant’s company. Thus the court held that every time the user enters the name of the product of the plaintiff’s company, or the name of the plaintiff’s company or any of the services provided by the plaintiff’s company the user is mislead by the site of the defandant’s company. The court entered the prim nary injunction subject to modifications prohibiting defandants from using deceptive methods to lure customers to its website.

Linking: linking is a process whereby a user connects from one side of the internet to another site by clicking on a designated speace on the initial site( hyperlink) which then connects the user to the other site. It is one of the most useful aspects for the internet users, because it permits users easily to navigate the internet without needing repeatedly to type website adresses or search terms.

Spamdexing: this words comes from a combination of spam and indexing. Here, either the company’s trademark is placed in the text of the web page instead of in the metatag, or placed in white print text so that it is technically part of the web page, but not visible to readers. Either way the option of the spamdexing is to cause search engines to find the web sites based on the popularity of the trade mark and thus give a website a higher “ hit-rate” than it would normally have. This places it on the top of the list in a response to an internet search, and based on its position of likely option drives additional traffic to the sides.[17]

Spoofing : A web user which has an email-id sometimes may discover an unwanted message from some undesirable site for example some pornographic site, such mails are called spams and now a days most of the websites provide for the filters which automatically junk these mails. But sometimes these blocked sites with the help of this method where they use the name of some well established web sites so that these mails can easily pass through the filters. The method is known as spoofing. Here one web site acquires the identity of another web site. 

Framing : Another novel issues that has emerged is framing, which allows a web page developer to build a frame or a border of text, or graphics on its own site and pull a webpage from another site into the frame or border, thus allowing it to offer the other site’s context within the frame on the developer’s own site.[18]Framing creates significant legal issues because it enables operators to create a new page that may eliminate content, advertising and even the site identifier from the framed page.[19]

Jurisdiction issue and protection accorded to the TM owners:

With the shrinking of global marketplace and advancement in communication technologies, the biggest issue that has arisen is to determine accurately the appropriate jurisdiction in a particular transaction. The insensitive nature of the internet to local constraints is the basis of all the jurisdictional problems. This issue can be illustrated with the help of the example : take a situation where the same trademark is owned and used by independent companies in the US and each company has a website (‘philips.com and philips.co.uk) which provides information about the company and its product, and which features prominent use of the mark. Moreover, one or both the companies offer goods or services for sale on their respective websites. Obviously both the websites can be accessed by the internet user from anywhere in the world, raising the possibility that someone in UK using the website of the UK company will encounter the website of the US company, and vice-versa.  Here the trademark issue arises whether the use of the trade mark by the US company on its US website constitute the infringement of the trademarks of the UK company.[20]

This is one of the most pertinent issue where there is still some space is left for the improvement. When a crime is being committed on the internet than it becomes really tough for the court to determine whether it has jurisdiction or not. In such circumstances what is taken into consideration is that whether the person or the company or any corporate body in question is related in some way or the other to the court. Basically there are two types of jurisdiction involved here, namely, the personal jurisdiction and the specific jurisdiction.

There are three criteria to determine whether the case falls under the personal jurisdiction or not :
(1) residence (2) incorporation  (3) ownership of the property in the state.
If the case falls under any of the above heads than the personal jurisdiction can be evoked. The three elements to determine the specific jurisdiction are :
(1) The claim must directly arise out of non resident’s activities in the forum state.
(2) the contacts must represent the “ purposeful availment” of the privilege of conducting activities in the forum state.
(3) The exercise of jurisdiction must be reasonable. Basically most of the cases that have been decided on online infringement of trademarks have been under the personal jurisdiction.

The Paris convention for the protection of the industrial property establishes a norm requiring the protection of trade names in all state party to the convention.[21] These norms were adopted by many nations in the form of the municipal laws in order to implement the recommendations of the Paris convention. Also, world intellectual property organization (WIPO) role in domain name management can not be sidetracked. One of the most crucial steps towards upholding the Protection of IPR by WIPO is publication of the interim report on 23rd December, 1998 whereby it contained interim recommendations regarding formal domain name registration agreement. It defines the rights and responsibilities of the registration authority, on the one hand and the domain name applicant on the other.


Alternate dispute resolution: Effective mode of dispute resolution:-

ADR( alternate dispute resolution) has, however, traditionally played only a modest role in the resolution of the intellectual property disputes. This has to do with the fundamentally territorial nature of intellectual property rights which are in principle, only granted for and protected in individual countries. ADR is however gaining increasing importance in IPR disputes filed with institutional ADR providers such as WIPO arbitration and mediation centre. In addition, courts cannot always respond to the efficiency demands of intellectual property rights owners, who can hardly afford to divert scarce resources in terms of time and money to lengthy litigation.[22]

Since court procedures are generally public, they provide few means of responding to the particularly sensitive confidential information involved in the intellectual property rights matters. And also the disputes are not always readily available within the national court system.

Thus on the brighter side the ADR proceedings allow the parties to avoid all these stumbling blocks. It also takes care of the confidentiality issues of the party and can deal with the multi jurisdictional issues. Though it doesn’t turns out to be fruitful in the cases of the extra- contractual disputes.[23]  The UDRP provides a single forum for the resolution of the dispute that would otherwise present difficult issues of international jurisdiction because of the likelihood of the parties based in different jurisdiction and that trademarks protected in several countries are involved. The UDPR also establishes a single set of rules for the administration as well as for the decision on the dispute and does not rely, in principle, on the municipal laws.[24]

 The UDRP does not attempt to resolve disputes between the parties that both hold a right  or legitimate interest in the domain name. such dispute requires a much more assessment of rights and interest involved and do not lend themselves easily to streamlining and standardizing, especially in the international context. Also contributing to the overall efficiency of the UDPR model is the fact that the remedies are limited to cancellation and transferring of the domain names that are directly enforceable in the domain name system and that panels cannot award monetary damages which would have to be enforced by the public means.

Viewpoint of the court in the cases of online infringement of TM:

Mere registration of the well known TM as domain name could give rise to the liability for the passing off. In appropriate circumstances, registration of the domain name can itself constitute an instrument of deception or fraud, leading to the liability of the passing off. ( British telecommunication. Inc vs.  west coast entertainment corp[25].,- the us court of appeals, ninth circuit confirmed that a comparison between the alleged infringing domain name and the registered trademark is relevant. The court emphasized on the eighth factor test used for determining whether confusion exists:  the similarity of the marks, the relatedness and proximity of the products or services, the marketing channels, the strength of the claimant’s mark, the defendants’ intention in selecting its mark, evidence of actual confusion, likelihood  of expansion into other product lines.)

The use of another’s TM in the domain name is allowed where the domain name itself does not give rise to the confusion. (Howitt Debroh, war.com : why the battles over domain names will never cease? Hastings communication and entertainment law journal.
Due to the peculiar nature of the domain name system identical names cannot exist. In such types of cases both the parties have historical connection to a mark and find themselves confronted with a domain name conflict. Subject to any dilution claim that a senior user may have, it has been the tendency of the courts in such cases to find no likelihood of confusion where both the parties have historical connection to mark and they operate in different industries. (interstellar starship services ltd vs. Epix inc[26].)

In Bawa Masal company vs. Bawa masala company Pvt. Ltd & Anr[27], at the request of the parties the court permitted a novel form of the alternate dispute resolution mechanism known as Early Neutral evaluation(ENE). Though it is not one of the models of the ADR mentioned under section 89 of the CPC, considering the objects of the section, the court permitted ENE and directed that its result-success or failure- should be communicated to the court. It is an technique used in the American litigation to provide early focus to complex commercial litigation, and based on that focus provides sensible case management or offer resolution of the entire case in the early stage.[28]

The above case is evident of the innovative steps that Indian courts are not afraid of taking. Because of the major jurisdictional issue there is an instant need of the dispute resolution policies and if the dispute is of grave nature than only the recourse of the courts can be taken.  Due to the lack of the geographical boundaries on the internet there lies disputes and the different mechanism of dispute resolution are under the process of evolution and there is no straight jacket formula to resolve the dispute and it depends on the gravity of the dispute along with another major considerations such as whether the party was ‘in contact’ to the court to the forum or not? What was the nature of infringement? What repercussion the claimant party had to suffer or the possible damages that can accrue because of such infringement? Is there any scope of settlement between the parties as such or not? With the advancement in the field of technology, it seems that our society also needs advancement and innovation in the field of law. America has shown the way for most of the countries by enacting the anti cyber squatting act, 1999 and also the Lehman’s act that is in force since 1947, thus providing comprehensive and total protection to the intellectual property rights owners and thus managing this issue of vast and critical consideration in one of the most lucid ways. India though has passed the It Act, 2000 but certain measures with respect to the protection of trade marks have to be still taken into consideration when in the recent times there have been blatant violation of the trademarks through the online medium have taken place. The Indians are still dependent upon the archaic Indian penal code and still within 10 years of its inception the protective measures granted under the IT act are in question.


Conclusion:

The network of computer networks aptly called the internet, which had a modest beginning, has grown by leaps and bounds. The growth of the internet has been explosive ; the number of internet users has doubled approximately every year since its introduction. Thus it can be inferred that the crime rate is booming with double alacrity. And thus to protect the interest of the thousands of innocent potential victims it is pertinent that protective laws should keep up with the number of crimes. But regrettably it is not even sufficient to curb the half of the cyber crimes.  There is appalling need for a Legislations like anti cybersquatting consumer protection act in India. Though the first step with respect to stop the cyber crimes was taken in 2000 but ten years from then the situation has worsened and the cyber thugs are easily able to spot out the loop holes in the neophyte legislation. There are problems relating to the regulation of the domain names, the jurisdiction, express provisions of law to normalize the crime rate on internet. Thus there is need of express provisions in the IT act 2000 with respect to the protection of such intricate cyber crimes that contains provision with respect to the jurisdiction and also the recommendations that were laid down in the WIPO’s interim report in 1998 has to take the shape of the municipal law. A good new beginning has been made with the implementation of the information technology act. This advantage should be consolidated and if we do not act with purpose, all our initial gains would be frittered away. To be succinct there is no time to waste.
Introduction :

Cyberspace is a virtual world, which exists only in computer memory, but it is interactive and pulsing with life. In cyberspace, one can meet and talk to new people, read, publish, research, hear music, see video, look at art, purchase and sell things, access government documents, send emails, download software, and receive technical support. Cyberspace is a living organism, constantly changing, as more information is uploaded, downloaded, as more people join the pioneers of this brave new world. Our laws have yet to catch up with it. This is not necessarily a bad thing; the law tends to lag behind the social changes, and then resolve itself accordingly. While this new frontier will never stop evolving, perhaps it is still too much in its infancy for us to determine how to regulate it. But as it becomes more integrated into (integral to) our daily lives, many are becoming concerned with defining acceptable behavior in this new landscape.[1]

Trademarks have existed as long as the trade itself. Once human economies progressed to the point where a merchant class specialized in making goods for others, the manufacturers and the sellers of the goods began to mark their wares with a word or symbol to identify the maker. Consumers rely most on trademarks when it is difficult to inspect a product quickly and cheaply to determine its quality.[2] Electronic commerce or trading through the internet has become a reality and is here to stay. This means that every future minded business should at least have a makeshift internet access point. Thus it is imperative that a common businessman would be as much apprehensive about the trademark infringement on internet/virtual world as he is outside it[3]. Thus in this era of information technology it becomes pertinent to address this issue of online infringement of trademarks with utmost care and lay out the vulnerable areas where the encroachers can easily spot the loop hole and thereby exploiting it and causing great financial loss to big business houses. This is the main focal point of this paper along with mentioning the possible solutions with respect to the contemporary legal framework.

What is Trade Mark?

Trade mark is defined under section 2(1)(zb) of the Trade marks act, 1999. Basically it means that a mark capable of being represented graphically and which is capable of being distinguishing the goods or services of one person from those of others and may include shape of goods , their packaging and combination of colours. The purpose of the Tm law is not to confer a monopoly on a right to use a specific word or symbol, instead it allows the first user to have some exclusive rights, which in effect exclude some other entities from adopting a similar work.  

The impact of trade marks on the internet:
Consumers rely on the strong brand presence and brand performance for the confidence to engage in e-commerce. While trade marks are of great importance in this virtual environment, they are more the less more vulnerable to infringement, dilution and anti-competitive practices. Trademark owners expend vast resources, engaging automated ‘web crawling’ software and cyber surveillance firms to monitor billions of web pages and protect their intellectual property rights.[4]

The traditional method of resolving legal conflict- court litigation- is largely organized on territorial basis. Each country has its own courts, which may be called upon to rule upon disputes falling under their jurisdiction, mostly on the basis of the application of local laws. The territorially based dispute resolution model faces a number of challenges when applied to disputes arising on the internet, where activity occurs with little regard for physical boundaries. Indian courts have been extremely vigilant in protecting the interests of the trademark owners. There are some lessons to be learnt from the Indian experience.[5]
The convergence of the computer networks and telecommunications facilitated by the digital technologies has started a new ‘digital era’. There is hardly any digital activity which has been remained untouched by the digital era through internet. The cyber manthan has bestowed many gifts to humanity but they have come with unexpected pitfalls. The emergence of the internet as a tool of e-communication and e–commerce has resulted in complex intellectual property issues. Each sunrise seems to be bring with it yet another change in the legal landscape of this unchartered   multi dimensional world evolving beyond the monitor screen.[6]

The scope of trade marks right with reference to the global effect:

The scope is determined not only by defining when such right is infringed, but also by specifying the remedy available to such right holder when an infringment has taken place. The most pertinent question that stands before us all is  : if a trade mark right has been infringed by the use of the sign on the internet, the question arises whether its owners its owner should be able to demand , with the help of the courts, that the defendant cease every use of the sign through the internet?[7]

Such an injunction would have an effect which would be as global as the internet itself. If the traditional trademarks law is to be translated into the cyberspace, a national and thus territorially limited, trade mark right should not give rise to an exclusive right throught the world wide expanse of this medium. It would, therefore, be appropriate if all available remedies were, as far as possible, limited to a territory for which the owner holds the exclusive right. Courts might have to take a creative approach in framing equitable relief, such as obliging the user of the sign on the internet to take reasonable measures for avoiding contracts with the territory in which the trade mark owners holds an exclusive rights.[8] This could be effected, for example by placing adequate statements on the website
( ‘Disclaimers’ as above) , by using the technical mechanisms to block access by the internet users located in a particular territory,. Concurrent users could also be encouraged to share a common gateway.

Trade marks and domain names: 

A domain name is part of the address of the location of a site on the internet. For instance harrods.com is the domain name of the London department store, Harrods. While TM have been around for a long time, domain names are comparatively a recent phenomenon attracting public attention only since the rise in popularity of the internet. The legal interface between the domain name and the TM has been the subject of much analysis. When the potential for conflict between the two first arose, there was there was the potential for a wave of cross border litigation as TM owners and the Domain name holders battled for the control of the domain names.[9]

Disputes over ownership of the domain names have arisen for a number of reasons. The domain name has been considered as akin to a trade mark. Therefore those who own the mark for the no-internet business wish to use the same name on the internet; it is seen as a valuable addition to the branding of goods or services or the business as a whole. Trade mark law is territorial whereas internet is global. Therefore, different business trading under the same mark in various parts of the world may have what they consider to be the same legitimate claim to a particular domain name. as no domain name can be identical therefore only one business house can have a particular name.


The registration of a domain name as a trade name:

In UK, the question of whether an internet address which includes ‘www’(as opposed to a domain name) can be registered as a TM has been considered in National Mantgomery securities LLC’s application case[10]where the application by nationsbanc to register http:// www.primebroker.com  in connection with goods and services in class 9(computer hardware and software) was refused on the grounds that it was devoid of distinctive character. The appeal was dismissed. It was found that the TM as a whole represented an email address. The element ‘www’ represented the ’world wide web’ and ‘.com’ a top level domain name. the whole sign was likely to be seen as an electronic mail address for a broker engaged in the services set out in the application and not in any way distinctive.
Despite this ruling, domain names have been registered as TMs, albeit with the added material rendering the domain name distinctive.


Why TM needs to be protected?

The reality of the Indian customers is evident in India. They do not trust the neophyte products that are basically advertised on the internet. Thus the protection needs to be accorded to the big brands of the market so that some one does not misuse the goodwill of their name and fame for making undue profits. Brands have proven to be a survival kit on the internet. Yet just a few companies have managed to gain leverage from the value of their brands and taken those benefits on the internet. There is close relationship between intellectual property and the internet, both in terms of the technical infrastructure and the products traded on it. The aspects of the internet infrastructure which could appropriately be subject to exclusive proprietary rights also is subject of constant debate and discussion.[11] in light of these deep ties between the intellectual property and the internet, the question has arisen whether any private international law regime for the internet could be deemed complete if it does not also address intellectual property issues.
Trademarks issues have been addressed under the lanham act’s remedies for traditional infringement. While the lanham act is still used, it applies only in the united states and does not assist in detecting infringement. Thus the companies have developed the software bots( software robots and software agents – to counter practices such as cyber squatting, metatags, etc legitimate trademarks and domain name owners frequently use “ software robots to locate third party unauthorized use of a company’s trademark)  to detect infringement and in late 1999, two additional avenues of resolution became available to the domain name registrants : (1) The international uniform dispute resolution policy (UDRP) developed by the internet corporations for assigned names and numbers( ICANN) in October 1999 and the (2) the US anti cyber squatting consumer protection act developed in November 1999.[12] 

Online infringement of Trade marks with the tool of cybersquatting, metatags[13],Linking, Spamdixing, Spoofing and others:

CybersquattingSome enterprising persons registered the names or the trade marks of the well known companies as domain names, with the sole intention of selling the names back to the companies when they finally woke up. Panasonic, tata, bennet & coleman and avon were among the “victims” of cyber squatting. This practice has reaped rich dividends for some who rushed madly to register TMs or names close to TMs and then demand high price to sell these domain names back to the interested companies. As already mentioned there is no connection between the trade mark registration and domain name registration. This lack of connection has been exploited maximum by the cybersquatters. The first come, first –served, nature of domain name is registered by someone with the sole purpose of selling it at a premium to a trade mark owner.
It occurs when a person hoping to sell the registration to the corresponding TM holder registers domain names holding the resemblance to the famous trade marks. Typically in such cases, persons who have absolutely nothing to do with the name, virtually pirate the name by obtaining a .com registration of a well known company or a brand. Countries like US,UK,india[14], Canada and New Zeland has cases decided upon this.

Metatag is the keyword embedded in a website’s HTML code as a means for internet search engines to categories the contents of the website. Metatags are not visible on the website itself( although they can be made visible together with the source code of this page)#.  The more often a word appears in the hidden code, the higher a search engine will rank the site in its search result. In various jurisdictions, trademarks owners have challenged the unauthorized use o their TMs as a metatag.

Metatag are invisible to the internet user and present no legal issues when used properly. Problems may arise, however if someone, uses metatags incorporating the trade marks or trade names of the competitors to lure customers to their sites, or if famous marks or names are gratuitously included in the metatags to attract visitors to sites having nothing to do with those names and marks. [15]

In Niton corp v Radiation Monitoring devices  inc[16] lays out how the competitors name can be used in the metatags.  In the recent case, the defendant used the plaintiff’s business name. the effect of the same was that when some lay consumer used to search for the plaintiff’s company on the search engine what followed after that is, most of the ‘hits’ which would confuse the web user and creates a dilemma as to the official site of the plaintiff’s company with that of the defandant’s company. Thus the court held that every time the user enters the name of the product of the plaintiff’s company, or the name of the plaintiff’s company or any of the services provided by the plaintiff’s company the user is mislead by the site of the defandant’s company. The court entered the prim nary injunction subject to modifications prohibiting defandants from using deceptive methods to lure customers to its website.

Linking: linking is a process whereby a user connects from one side of the internet to another site by clicking on a designated speace on the initial site( hyperlink) which then connects the user to the other site. It is one of the most useful aspects for the internet users, because it permits users easily to navigate the internet without needing repeatedly to type website adresses or search terms.

Spamdexing: this words comes from a combination of spam and indexing. Here, either the company’s trademark is placed in the text of the web page instead of in the metatag, or placed in white print text so that it is technically part of the web page, but not visible to readers. Either way the option of the spamdexing is to cause search engines to find the web sites based on the popularity of the trade mark and thus give a website a higher “ hit-rate” than it would normally have. This places it on the top of the list in a response to an internet search, and based on its position of likely option drives additional traffic to the sides.[17]

Spoofing : A web user which has an email-id sometimes may discover an unwanted message from some undesirable site for example some pornographic site, such mails are called spams and now a days most of the websites provide for the filters which automatically junk these mails. But sometimes these blocked sites with the help of this method where they use the name of some well established web sites so that these mails can easily pass through the filters. The method is known as spoofing. Here one web site acquires the identity of another web site. 

Framing : Another novel issues that has emerged is framing, which allows a web page developer to build a frame or a border of text, or graphics on its own site and pull a webpage from another site into the frame or border, thus allowing it to offer the other site’s context within the frame on the developer’s own site.[18]Framing creates significant legal issues because it enables operators to create a new page that may eliminate content, advertising and even the site identifier from the framed page.[19]

Jurisdiction issue and protection accorded to the TM owners:

With the shrinking of global marketplace and advancement in communication technologies, the biggest issue that has arisen is to determine accurately the appropriate jurisdiction in a particular transaction. The insensitive nature of the internet to local constraints is the basis of all the jurisdictional problems. This issue can be illustrated with the help of the example : take a situation where the same trademark is owned and used by independent companies in the US and each company has a website (‘philips.com and philips.co.uk) which provides information about the company and its product, and which features prominent use of the mark. Moreover, one or both the companies offer goods or services for sale on their respective websites. Obviously both the websites can be accessed by the internet user from anywhere in the world, raising the possibility that someone in UK using the website of the UK company will encounter the website of the US company, and vice-versa.  Here the trademark issue arises whether the use of the trade mark by the US company on its US website constitute the infringement of the trademarks of the UK company.[20]

This is one of the most pertinent issue where there is still some space is left for the improvement. When a crime is being committed on the internet than it becomes really tough for the court to determine whether it has jurisdiction or not. In such circumstances what is taken into consideration is that whether the person or the company or any corporate body in question is related in some way or the other to the court. Basically there are two types of jurisdiction involved here, namely, the personal jurisdiction and the specific jurisdiction.

There are three criteria to determine whether the case falls under the personal jurisdiction or not :
(1) residence (2) incorporation  (3) ownership of the property in the state.
If the case falls under any of the above heads than the personal jurisdiction can be evoked. The three elements to determine the specific jurisdiction are :
(1) The claim must directly arise out of non resident’s activities in the forum state.
(2) the contacts must represent the “ purposeful availment” of the privilege of conducting activities in the forum state.
(3) The exercise of jurisdiction must be reasonable. Basically most of the cases that have been decided on online infringement of trademarks have been under the personal jurisdiction.

The Paris convention for the protection of the industrial property establishes a norm requiring the protection of trade names in all state party to the convention.[21] These norms were adopted by many nations in the form of the municipal laws in order to implement the recommendations of the Paris convention. Also, world intellectual property organization (WIPO) role in domain name management can not be sidetracked. One of the most crucial steps towards upholding the Protection of IPR by WIPO is publication of the interim report on 23rd December, 1998 whereby it contained interim recommendations regarding formal domain name registration agreement. It defines the rights and responsibilities of the registration authority, on the one hand and the domain name applicant on the other.


Alternate dispute resolution: Effective mode of dispute resolution:-

ADR( alternate dispute resolution) has, however, traditionally played only a modest role in the resolution of the intellectual property disputes. This has to do with the fundamentally territorial nature of intellectual property rights which are in principle, only granted for and protected in individual countries. ADR is however gaining increasing importance in IPR disputes filed with institutional ADR providers such as WIPO arbitration and mediation centre. In addition, courts cannot always respond to the efficiency demands of intellectual property rights owners, who can hardly afford to divert scarce resources in terms of time and money to lengthy litigation.[22]

Since court procedures are generally public, they provide few means of responding to the particularly sensitive confidential information involved in the intellectual property rights matters. And also the disputes are not always readily available within the national court system.

Thus on the brighter side the ADR proceedings allow the parties to avoid all these stumbling blocks. It also takes care of the confidentiality issues of the party and can deal with the multi jurisdictional issues. Though it doesn’t turns out to be fruitful in the cases of the extra- contractual disputes.[23]  The UDRP provides a single forum for the resolution of the dispute that would otherwise present difficult issues of international jurisdiction because of the likelihood of the parties based in different jurisdiction and that trademarks protected in several countries are involved. The UDPR also establishes a single set of rules for the administration as well as for the decision on the dispute and does not rely, in principle, on the municipal laws.[24]

 The UDRP does not attempt to resolve disputes between the parties that both hold a right  or legitimate interest in the domain name. such dispute requires a much more assessment of rights and interest involved and do not lend themselves easily to streamlining and standardizing, especially in the international context. Also contributing to the overall efficiency of the UDPR model is the fact that the remedies are limited to cancellation and transferring of the domain names that are directly enforceable in the domain name system and that panels cannot award monetary damages which would have to be enforced by the public means.

Viewpoint of the court in the cases of online infringement of TM:

Mere registration of the well known TM as domain name could give rise to the liability for the passing off. In appropriate circumstances, registration of the domain name can itself constitute an instrument of deception or fraud, leading to the liability of the passing off. ( British telecommunication. Inc vs.  west coast entertainment corp[25].,- the us court of appeals, ninth circuit confirmed that a comparison between the alleged infringing domain name and the registered trademark is relevant. The court emphasized on the eighth factor test used for determining whether confusion exists:  the similarity of the marks, the relatedness and proximity of the products or services, the marketing channels, the strength of the claimant’s mark, the defendants’ intention in selecting its mark, evidence of actual confusion, likelihood  of expansion into other product lines.)

The use of another’s TM in the domain name is allowed where the domain name itself does not give rise to the confusion. (Howitt Debroh, war.com : why the battles over domain names will never cease? Hastings communication and entertainment law journal.
Due to the peculiar nature of the domain name system identical names cannot exist. In such types of cases both the parties have historical connection to a mark and find themselves confronted with a domain name conflict. Subject to any dilution claim that a senior user may have, it has been the tendency of the courts in such cases to find no likelihood of confusion where both the parties have historical connection to mark and they operate in different industries. (interstellar starship services ltd vs. Epix inc[26].)

In Bawa Masal company vs. Bawa masala company Pvt. Ltd & Anr[27], at the request of the parties the court permitted a novel form of the alternate dispute resolution mechanism known as Early Neutral evaluation(ENE). Though it is not one of the models of the ADR mentioned under section 89 of the CPC, considering the objects of the section, the court permitted ENE and directed that its result-success or failure- should be communicated to the court. It is an technique used in the American litigation to provide early focus to complex commercial litigation, and based on that focus provides sensible case management or offer resolution of the entire case in the early stage.[28]

The above case is evident of the innovative steps that Indian courts are not afraid of taking. Because of the major jurisdictional issue there is an instant need of the dispute resolution policies and if the dispute is of grave nature than only the recourse of the courts can be taken.  Due to the lack of the geographical boundaries on the internet there lies disputes and the different mechanism of dispute resolution are under the process of evolution and there is no straight jacket formula to resolve the dispute and it depends on the gravity of the dispute along with another major considerations such as whether the party was ‘in contact’ to the court to the forum or not? What was the nature of infringement? What repercussion the claimant party had to suffer or the possible damages that can accrue because of such infringement? Is there any scope of settlement between the parties as such or not? With the advancement in the field of technology, it seems that our society also needs advancement and innovation in the field of law. America has shown the way for most of the countries by enacting the anti cyber squatting act, 1999 and also the Lehman’s act that is in force since 1947, thus providing comprehensive and total protection to the intellectual property rights owners and thus managing this issue of vast and critical consideration in one of the most lucid ways. India though has passed the It Act, 2000 but certain measures with respect to the protection of trade marks have to be still taken into consideration when in the recent times there have been blatant violation of the trademarks through the online medium have taken place. The Indians are still dependent upon the archaic Indian penal code and still within 10 years of its inception the protective measures granted under the IT act are in question.


Conclusion:

The network of computer networks aptly called the internet, which had a modest beginning, has grown by leaps and bounds. The growth of the internet has been explosive ; the number of internet users has doubled approximately every year since its introduction. Thus it can be inferred that the crime rate is booming with double alacrity. And thus to protect the interest of the thousands of innocent potential victims it is pertinent that protective laws should keep up with the number of crimes. But regrettably it is not even sufficient to curb the half of the cyber crimes.  There is appalling need for a Legislations like anti cybersquatting consumer protection act in India. Though the first step with respect to stop the cyber crimes was taken in 2000 but ten years from then the situation has worsened and the cyber thugs are easily able to spot out the loop holes in the neophyte legislation. There are problems relating to the regulation of the domain names, the jurisdiction, express provisions of law to normalize the crime rate on internet. Thus there is need of express provisions in the IT act 2000 with respect to the protection of such intricate cyber crimes that contains provision with respect to the jurisdiction and also the recommendations that were laid down in the WIPO’s interim report in 1998 has to take the shape of the municipal law. A good new beginning has been made with the implementation of the information technology act. This advantage should be consolidated and if we do not act with purpose, all our initial gains would be frittered away. To be succinct there is no time to waste.
Introduction :

Cyberspace is a virtual world, which exists only in computer memory, but it is interactive and pulsing with life. In cyberspace, one can meet and talk to new people, read, publish, research, hear music, see video, look at art, purchase and sell things, access government documents, send emails, download software, and receive technical support. Cyberspace is a living organism, constantly changing, as more information is uploaded, downloaded, as more people join the pioneers of this brave new world. Our laws have yet to catch up with it. This is not necessarily a bad thing; the law tends to lag behind the social changes, and then resolve itself accordingly. While this new frontier will never stop evolving, perhaps it is still too much in its infancy for us to determine how to regulate it. But as it becomes more integrated into (integral to) our daily lives, many are becoming concerned with defining acceptable behavior in this new landscape.[1]

Trademarks have existed as long as the trade itself. Once human economies progressed to the point where a merchant class specialized in making goods for others, the manufacturers and the sellers of the goods began to mark their wares with a word or symbol to identify the maker. Consumers rely most on trademarks when it is difficult to inspect a product quickly and cheaply to determine its quality.[2] Electronic commerce or trading through the internet has become a reality and is here to stay. This means that every future minded business should at least have a makeshift internet access point. Thus it is imperative that a common businessman would be as much apprehensive about the trademark infringement on internet/virtual world as he is outside it[3]. Thus in this era of information technology it becomes pertinent to address this issue of online infringement of trademarks with utmost care and lay out the vulnerable areas where the encroachers can easily spot the loop hole and thereby exploiting it and causing great financial loss to big business houses. This is the main focal point of this paper along with mentioning the possible solutions with respect to the contemporary legal framework.

What is Trade Mark?

Trade mark is defined under section 2(1)(zb) of the Trade marks act, 1999. Basically it means that a mark capable of being represented graphically and which is capable of being distinguishing the goods or services of one person from those of others and may include shape of goods , their packaging and combination of colours. The purpose of the Tm law is not to confer a monopoly on a right to use a specific word or symbol, instead it allows the first user to have some exclusive rights, which in effect exclude some other entities from adopting a similar work.  

The impact of trade marks on the internet:
Consumers rely on the strong brand presence and brand performance for the confidence to engage in e-commerce. While trade marks are of great importance in this virtual environment, they are more the less more vulnerable to infringement, dilution and anti-competitive practices. Trademark owners expend vast resources, engaging automated ‘web crawling’ software and cyber surveillance firms to monitor billions of web pages and protect their intellectual property rights.[4]

The traditional method of resolving legal conflict- court litigation- is largely organized on territorial basis. Each country has its own courts, which may be called upon to rule upon disputes falling under their jurisdiction, mostly on the basis of the application of local laws. The territorially based dispute resolution model faces a number of challenges when applied to disputes arising on the internet, where activity occurs with little regard for physical boundaries. Indian courts have been extremely vigilant in protecting the interests of the trademark owners. There are some lessons to be learnt from the Indian experience.[5]
The convergence of the computer networks and telecommunications facilitated by the digital technologies has started a new ‘digital era’. There is hardly any digital activity which has been remained untouched by the digital era through internet. The cyber manthan has bestowed many gifts to humanity but they have come with unexpected pitfalls. The emergence of the internet as a tool of e-communication and e–commerce has resulted in complex intellectual property issues. Each sunrise seems to be bring with it yet another change in the legal landscape of this unchartered   multi dimensional world evolving beyond the monitor screen.[6]

The scope of trade marks right with reference to the global effect:

The scope is determined not only by defining when such right is infringed, but also by specifying the remedy available to such right holder when an infringment has taken place. The most pertinent question that stands before us all is  : if a trade mark right has been infringed by the use of the sign on the internet, the question arises whether its owners its owner should be able to demand , with the help of the courts, that the defendant cease every use of the sign through the internet?[7]

Such an injunction would have an effect which would be as global as the internet itself. If the traditional trademarks law is to be translated into the cyberspace, a national and thus territorially limited, trade mark right should not give rise to an exclusive right throught the world wide expanse of this medium. It would, therefore, be appropriate if all available remedies were, as far as possible, limited to a territory for which the owner holds the exclusive right. Courts might have to take a creative approach in framing equitable relief, such as obliging the user of the sign on the internet to take reasonable measures for avoiding contracts with the territory in which the trade mark owners holds an exclusive rights.[8] This could be effected, for example by placing adequate statements on the website

( ‘Disclaimers’ as above) , by using the technical mechanisms to block access by the internet users located in a particular territory,. Concurrent users could also be encouraged to share a common gateway.

Trade marks and domain names: 

A domain name is part of the address of the location of a site on the internet. For instance harrods.com is the domain name of the London department store, Harrods. While TM have been around for a long time, domain names are comparatively a recent phenomenon attracting public attention only since the rise in popularity of the internet. The legal interface between the domain name and the TM has been the subject of much analysis. When the potential for conflict between the two first arose, there was there was the potential for a wave of cross border litigation as TM owners and the Domain name holders battled for the control of the domain names.[9]

Disputes over ownership of the domain names have arisen for a number of reasons. The domain name has been considered as akin to a trade mark. Therefore those who own the mark for the no-internet business wish to use the same name on the internet; it is seen as a valuable addition to the branding of goods or services or the business as a whole. Trade mark law is territorial whereas internet is global. Therefore, different business trading under the same mark in various parts of the world may have what they consider to be the same legitimate claim to a particular domain name. as no domain name can be identical therefore only one business house can have a particular name.


The registration of a domain name as a trade name:

In UK, the question of whether an internet address which includes ‘www’(as opposed to a domain name) can be registered as a TM has been considered in National Mantgomery securities LLC’s application case[10]where the application by nationsbanc to register http:// www.primebroker.com  in connection with goods and services in class 9(computer hardware and software) was refused on the grounds that it was devoid of distinctive character. The appeal was dismissed. It was found that the TM as a whole represented an email address. The element ‘www’ represented the ’world wide web’ and ‘.com’ a top level domain name. the whole sign was likely to be seen as an electronic mail address for a broker engaged in the services set out in the application and not in any way distinctive.
Despite this ruling, domain names have been registered as TMs, albeit with the added material rendering the domain name distinctive.


Why TM needs to be protected?

The reality of the Indian customers is evident in India. They do not trust the neophyte products that are basically advertised on the internet. Thus the protection needs to be accorded to the big brands of the market so that some one does not misuse the goodwill of their name and fame for making undue profits. Brands have proven to be a survival kit on the internet. Yet just a few companies have managed to gain leverage from the value of their brands and taken those benefits on the internet. There is close relationship between intellectual property and the internet, both in terms of the technical infrastructure and the products traded on it. The aspects of the internet infrastructure which could appropriately be subject to exclusive proprietary rights also is subject of constant debate and discussion.[11] in light of these deep ties between the intellectual property and the internet, the question has arisen whether any private international law regime for the internet could be deemed complete if it does not also address intellectual property issues.
Trademarks issues have been addressed under the lanham act’s remedies for traditional infringement. While the lanham act is still used, it applies only in the united states and does not assist in detecting infringement. Thus the companies have developed the software bots( software robots and software agents – to counter practices such as cyber squatting, metatags, etc legitimate trademarks and domain name owners frequently use “ software robots to locate third party unauthorized use of a company’s trademark)  to detect infringement and in late 1999, two additional avenues of resolution became available to the domain name registrants : (1) The international uniform dispute resolution policy (UDRP) developed by the internet corporations for assigned names and numbers( ICANN) in October 1999 and the (2) the US anti cyber squatting consumer protection act developed in November 1999.[12] 

Online infringement of Trade marks with the tool of cybersquatting, metatags[13],Linking, Spamdixing, Spoofing and others:

CybersquattingSome enterprising persons registered the names or the trade marks of the well known companies as domain names, with the sole intention of selling the names back to the companies when they finally woke up. Panasonic, tata, bennet & coleman and avon were among the “victims” of cyber squatting. This practice has reaped rich dividends for some who rushed madly to register TMs or names close to TMs and then demand high price to sell these domain names back to the interested companies. As already mentioned there is no connection between the trade mark registration and domain name registration. This lack of connection has been exploited maximum by the cybersquatters. The first come, first –served, nature of domain name is registered by someone with the sole purpose of selling it at a premium to a trade mark owner.
It occurs when a person hoping to sell the registration to the corresponding TM holder registers domain names holding the resemblance to the famous trade marks. Typically in such cases, persons who have absolutely nothing to do with the name, virtually pirate the name by obtaining a .com registration of a well known company or a brand. Countries like US,UK,india[14], Canada and New Zeland has cases decided upon this.

Metatag is the keyword embedded in a website’s HTML code as a means for internet search engines to categories the contents of the website. Metatags are not visible on the website itself( although they can be made visible together with the source code of this page)#.  The more often a word appears in the hidden code, the higher a search engine will rank the site in its search result. In various jurisdictions, trademarks owners have challenged the unauthorized use o their TMs as a metatag.

Metatag are invisible to the internet user and present no legal issues when used properly. Problems may arise, however if someone, uses metatags incorporating the trade marks or trade names of the competitors to lure customers to their sites, or if famous marks or names are gratuitously included in the metatags to attract visitors to sites having nothing to do with those names and marks. [15]

In Niton corp v Radiation Monitoring devices  inc[16] lays out how the competitors name can be used in the metatags.  In the recent case, the defendant used the plaintiff’s business name. the effect of the same was that when some lay consumer used to search for the plaintiff’s company on the search engine what followed after that is, most of the ‘hits’ which would confuse the web user and creates a dilemma as to the official site of the plaintiff’s company with that of the defandant’s company. Thus the court held that every time the user enters the name of the product of the plaintiff’s company, or the name of the plaintiff’s company or any of the services provided by the plaintiff’s company the user is mislead by the site of the defandant’s company. The court entered the prim nary injunction subject to modifications prohibiting defandants from using deceptive methods to lure customers to its website.

Linking: linking is a process whereby a user connects from one side of the internet to another site by clicking on a designated speace on the initial site( hyperlink) which then connects the user to the other site. It is one of the most useful aspects for the internet users, because it permits users easily to navigate the internet without needing repeatedly to type website adresses or search terms.

Spamdexing: this words comes from a combination of spam and indexing. Here, either the company’s trademark is placed in the text of the web page instead of in the metatag, or placed in white print text so that it is technically part of the web page, but not visible to readers. Either way the option of the spamdexing is to cause search engines to find the web sites based on the popularity of the trade mark and thus give a website a higher “ hit-rate” than it would normally have. This places it on the top of the list in a response to an internet search, and based on its position of likely option drives additional traffic to the sides.[17]

Spoofing : A web user which has an email-id sometimes may discover an unwanted message from some undesirable site for example some pornographic site, such mails are called spams and now a days most of the websites provide for the filters which automatically junk these mails. But sometimes these blocked sites with the help of this method where they use the name of some well established web sites so that these mails can easily pass through the filters. The method is known as spoofing. Here one web site acquires the identity of another web site. 

Framing : Another novel issues that has emerged is framing, which allows a web page developer to build a frame or a border of text, or graphics on its own site and pull a webpage from another site into the frame or border, thus allowing it to offer the other site’s context within the frame on the developer’s own site.[18]Framing creates significant legal issues because it enables operators to create a new page that may eliminate content, advertising and even the site identifier from the framed page.[19]

Jurisdiction issue and protection accorded to the TM owners:

With the shrinking of global marketplace and advancement in communication technologies, the biggest issue that has arisen is to determine accurately the appropriate jurisdiction in a particular transaction. The insensitive nature of the internet to local constraints is the basis of all the jurisdictional problems. This issue can be illustrated with the help of the example : take a situation where the same trademark is owned and used by independent companies in the US and each company has a website (‘philips.com and philips.co.uk) which provides information about the company and its product, and which features prominent use of the mark. Moreover, one or both the companies offer goods or services for sale on their respective websites. Obviously both the websites can be accessed by the internet user from anywhere in the world, raising the possibility that someone in UK using the website of the UK company will encounter the website of the US company, and vice-versa.  Here the trademark issue arises whether the use of the trade mark by the US company on its US website constitute the infringement of the trademarks of the UK company.[20]

This is one of the most pertinent issue where there is still some space is left for the improvement. When a crime is being committed on the internet than it becomes really tough for the court to determine whether it has jurisdiction or not. In such circumstances what is taken into consideration is that whether the person or the company or any corporate body in question is related in some way or the other to the court. Basically there are two types of jurisdiction involved here, namely, the personal jurisdiction and the specific jurisdiction.

There are three criteria to determine whether the case falls under the personal jurisdiction or not :
(1) residence (2) incorporation  (3) ownership of the property in the state.
If the case falls under any of the above heads than the personal jurisdiction can be evoked. The three elements to determine the specific jurisdiction are :
(1) The claim must directly arise out of non resident’s activities in the forum state.
(2) the contacts must represent the “ purposeful availment” of the privilege of conducting activities in the forum state.
(3) The exercise of jurisdiction must be reasonable. Basically most of the cases that have been decided on online infringement of trademarks have been under the personal jurisdiction.

The Paris convention for the protection of the industrial property establishes a norm requiring the protection of trade names in all state party to the convention.[21] These norms were adopted by many nations in the form of the municipal laws in order to implement the recommendations of the Paris convention. Also, world intellectual property organization (WIPO) role in domain name management can not be sidetracked. One of the most crucial steps towards upholding the Protection of IPR by WIPO is publication of the interim report on 23rd December, 1998 whereby it contained interim recommendations regarding formal domain name registration agreement. It defines the rights and responsibilities of the registration authority, on the one hand and the domain name applicant on the other.


Alternate dispute resolution: Effective mode of dispute resolution:-

ADR( alternate dispute resolution) has, however, traditionally played only a modest role in the resolution of the intellectual property disputes. This has to do with the fundamentally territorial nature of intellectual property rights which are in principle, only granted for and protected in individual countries. ADR is however gaining increasing importance in IPR disputes filed with institutional ADR providers such as WIPO arbitration and mediation centre. In addition, courts cannot always respond to the efficiency demands of intellectual property rights owners, who can hardly afford to divert scarce resources in terms of time and money to lengthy litigation.[22]

Since court procedures are generally public, they provide few means of responding to the particularly sensitive confidential information involved in the intellectual property rights matters. And also the disputes are not always readily available within the national court system.

Thus on the brighter side the ADR proceedings allow the parties to avoid all these stumbling blocks. It also takes care of the confidentiality issues of the party and can deal with the multi jurisdictional issues. Though it doesn’t turns out to be fruitful in the cases of the extra- contractual disputes.[23]  The UDRP provides a single forum for the resolution of the dispute that would otherwise present difficult issues of international jurisdiction because of the likelihood of the parties based in different jurisdiction and that trademarks protected in several countries are involved. The UDPR also establishes a single set of rules for the administration as well as for the decision on the dispute and does not rely, in principle, on the municipal laws.[24]

 The UDRP does not attempt to resolve disputes between the parties that both hold a right  or legitimate interest in the domain name. such dispute requires a much more assessment of rights and interest involved and do not lend themselves easily to streamlining and standardizing, especially in the international context. Also contributing to the overall efficiency of the UDPR model is the fact that the remedies are limited to cancellation and transferring of the domain names that are directly enforceable in the domain name system and that panels cannot award monetary damages which would have to be enforced by the public means.

Viewpoint of the court in the cases of online infringement of TM:

Mere registration of the well known TM as domain name could give rise to the liability for the passing off. In appropriate circumstances, registration of the domain name can itself constitute an instrument of deception or fraud, leading to the liability of the passing off. ( British telecommunication. Inc vs.  west coast entertainment corp[25].,- the us court of appeals, ninth circuit confirmed that a comparison between the alleged infringing domain name and the registered trademark is relevant. The court emphasized on the eighth factor test used for determining whether confusion exists:  the similarity of the marks, the relatedness and proximity of the products or services, the marketing channels, the strength of the claimant’s mark, the defendants’ intention in selecting its mark, evidence of actual confusion, likelihood  of expansion into other product lines.)

The use of another’s TM in the domain name is allowed where the domain name itself does not give rise to the confusion. (Howitt Debroh, war.com : why the battles over domain names will never cease? Hastings communication and entertainment law journal.
Due to the peculiar nature of the domain name system identical names cannot exist. In such types of cases both the parties have historical connection to a mark and find themselves confronted with a domain name conflict. Subject to any dilution claim that a senior user may have, it has been the tendency of the courts in such cases to find no likelihood of confusion where both the parties have historical connection to mark and they operate in different industries. (interstellar starship services ltd vs. Epix inc[26].)

In Bawa Masal company vs. Bawa masala company Pvt. Ltd & Anr[27], at the request of the parties the court permitted a novel form of the alternate dispute resolution mechanism known as Early Neutral evaluation(ENE). Though it is not one of the models of the ADR mentioned under section 89 of the CPC, considering the objects of the section, the court permitted ENE and directed that its result-success or failure- should be communicated to the court. It is an technique used in the American litigation to provide early focus to complex commercial litigation, and based on that focus provides sensible case management or offer resolution of the entire case in the early stage.[28]

The above case is evident of the innovative steps that Indian courts are not afraid of taking. Because of the major jurisdictional issue there is an instant need of the dispute resolution policies and if the dispute is of grave nature than only the recourse of the courts can be taken.  Due to the lack of the geographical boundaries on the internet there lies disputes and the different mechanism of dispute resolution are under the process of evolution and there is no straight jacket formula to resolve the dispute and it depends on the gravity of the dispute along with another major considerations such as whether the party was ‘in contact’ to the court to the forum or not? What was the nature of infringement? What repercussion the claimant party had to suffer or the possible damages that can accrue because of such infringement? Is there any scope of settlement between the parties as such or not? With the advancement in the field of technology, it seems that our society also needs advancement and innovation in the field of law. America has shown the way for most of the countries by enacting the anti cyber squatting act, 1999 and also the Lehman’s act that is in force since 1947, thus providing comprehensive and total protection to the intellectual property rights owners and thus managing this issue of vast and critical consideration in one of the most lucid ways. India though has passed the It Act, 2000 but certain measures with respect to the protection of trade marks have to be still taken into consideration when in the recent times there have been blatant violation of the trademarks through the online medium have taken place. The Indians are still dependent upon the archaic Indian penal code and still within 10 years of its inception the protective measures granted under the IT act are in question.


Conclusion:

The network of computer networks aptly called the internet, which had a modest beginning, has grown by leaps and bounds. The growth of the internet has been explosive ; the number of internet users has doubled approximately every year since its introduction. Thus it can be inferred that the crime rate is booming with double alacrity. And thus to protect the interest of the thousands of innocent potential victims it is pertinent that protective laws should keep up with the number of crimes. But regrettably it is not even sufficient to curb the half of the cyber crimes.  There is appalling need for a Legislations like anti cybersquatting consumer protection act in India. Though the first step with respect to stop the cyber crimes was taken in 2000 but ten years from then the situation has worsened and the cyber thugs are easily able to spot out the loop holes in the neophyte legislation. There are problems relating to the regulation of the domain names, the jurisdiction, express provisions of law to normalize the crime rate on internet. Thus there is need of express provisions in the IT act 2000 with respect to the protection of such intricate cyber crimes that contains provision with respect to the jurisdiction and also the recommendations that were laid down in the WIPO’s interim report in 1998 has to take the shape of the municipal law. A good new beginning has been made with the implementation of the information technology act. This advantage should be consolidated and if we do not act with purpose, all our initial gains would be frittered away. To be succinct there is no time to waste.