DOMAIN NAME DISPUTE AND CYBER SQUATTING

Cybersquatting, is a crime against the laws and regulations of cyber law. It can be defined as registering, trafficking in, or using a domain name with bad-faith i.e. mala fide intent to make profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.

The term is derived from “squatting”, which is the act of occupying an abandoned or unoccupied space or building that the squatter does not own, rent or otherwise have permission to use. Cybersquatting however, is a bit different in that the domain names that are being “squatted” are (sometimes but not always) being paid for through the registration process by the Cybersquatters. Cybersquatters usually ask for prices far greater than that at which they purchased it. Some cybersquatters put up derogatory or defamatory remarks about the person or company the domain is meant to represent in an effort to encourage the subject to buy the domain from them1. Some common examples of cyber squatting includes:

• The omission of the “dot” in the domain name: wwwexample.com;
• A common misspelling of the intended site: exemple.com
• A differently phrased domain name: examples.com
• A different top-level domain: example.org

The practice that’s come to be known as cyber-squatting originated at a time when most businesses were not savvy about the commercial opportunities on the Internet. Some entrepreneurial souls registered the names of well-known companies as domain names, with the intent of selling the names back to the companies when they finally woke up. Many multinational companies like Tata, Bennett & Coleman, Mc Donald’s etc were among the first victims of cybersquatting2.

 The clash of the new technology with preexisting trade mark rights resulted in several high profile decisions as the courts of many countries tried to coherently address the issue (and not always successfully) within the framework of existing trade mark law. As the website itself was not the product being purchased, there was no actual consumer confusion, and so initial interest confusion was a concept applied instead3.

Most courts particularly frowned on cyber squatting, and found that it was itself a sufficiently commercial use (i.e., “trafficking” in trade marks) to reach into the area of trademark infringement. Most jurisdictions have since amended their trademark laws to address domain names specifically, and to provide explicit remedies against cyber squatters.

This international legal change has also led to the creation of ICANN (International community for assigned names and numbers), Uniform Domain-Name Dispute-Resolution Policy (UDRP), which attempt to streamline the process of resolving who should own a domain. This is particularly desirable to trade mark owners when the domain name registrant may be in another country or even anonymous.

Registrants of domain names also sometimes wish to register the domain names themselves (e.g., “XYZ.COM”) as trade marks for perceived advantages, such as an extra bulwark against their domain being hijacked, and to avail themselves of such remedies as confusion or passing off against other domain holders with confusingly similar or intentionally misspelled domain names.

As with other trade marks, the domain name will not be subject to registration unless the proposed mark is actually used to identify the registrant’s goods or services to the public, rather than simply being the location on the Internet where the applicant’s web site appears. Amazon.com is a prime example of a protected trademark for a domain name central to the public’s identification of the company and its products4.

The World Intellectual Property Organisation (WIPO) Arbitration and Mediation Center deals with domain name disputes under the new Uniform Dispute Resolution Policy applicable to generic top-level domain names adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999. The WIPO Center’s Domain Name Dispute Resolution service has been established specifically to administer domain name disputes with the availability of electronic case filing facilities and a well developed case administration system5.

Resolving Domain Name Disputes6:

Domain name dispute may be resolved in one of the following ways:

A. Court proceedings or litigation

Generally, courts all over the world have applied Trademark Laws in order to resolve domain name disputes. Normally the following factors are taken in account by the courts in case of an infringement and/or passing off action with respect to domain name dispute:

Whether the domain name in dispute is:-

i. Identical or deceptively similar with the already registered trademark;

ii. Identical or deceptively similar to a mark that has acquired reputation in the market;

iii. Deceptively similar to already existing domain name;

iv. Adopted in a bad faith;

v. causing confusion or likely to cause confusion in the mind of general public with respect to real owner

vi. Causing damage or likely to cause damage in terms of business and goodwill.

 

B. Administrative Proceeding

Uniform Domain Name Dispute Resolution Policy commonly known as UDRP provides the trademark owners an effective mechanism for resolving the disputes arising out of domain name registered and use in bad faith. UDRP is an international body, formed based on the recommendation of World Intellectual Property Organization (WIPO) that provides for resolving domain name dispute regardless of where the registrar, the domain name registrant or complaining trademark owner is located. Under UDRP trademark owner may submit dispute arising from alledge abusive registration of domain name by way of filing a complaint with the approved dispute resolution service provider requesting the resolution of domain name dispute.

In UDRP proceeding with respect to domain name dispute, complainant has to ensure the presence of all the three below mentioned elements:

• That the impugned Domain name is identical or confusingly similar to his trademark or service mark in which he has rights;

• That the claimant of impugned domain name has no rights or legitimate interests in it; and

• That the impugned domain name has been registered and is being used in bad faith.

For constituting that domain name has been registered and is being used in bad faith following elements may be taken as evidence:

a. circumstances indicating that impugned domain name has been registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the bona fide owner of the trademark or service mark or to a competitor of that owner, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name.

b. impugned domain name is registered in order to prevent the bona fide owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the allegee have engaged in a pattern of such conduct.

c. impugned domain have been registered primarily for the purpose of disrupting the business of the bona fide owner of the trademark or service mark.

d. by using the impugned domain name, allegee intentionally attempted to attract, for commercial gain, Internet users to his website or other online location, by creating a likelihood of confusion with the bona fide owner of the trademark or service mark as to the source, sponsorship, affiliation or endorsement of his website or location or of a product or service on his website or location.

It is recommended that while choosing and adopting a domain name proper availability searches should be conducted. It includes pre-launch trademark searches and domain name searches in order to avoid conflicts and legal hassles. Once a domain name is adopted and business is commenced under it one can incur losses with the onset of any such conflict.

First Cybersquatting Case (Word Wrestling Federation case)8:

The first cybersquatting case under the WIPO was decided on January 14, 2000.

The US based World Wrestling Federation (WWF) brought a suit against a California resident who registered the domain name worldwrestlingfederation.com and offered to sell it to WWF at a huge dividend a few days later. The WWF alleged that the domain name in question was registered in bad faith by the registrant in violation of WWF’s trademark.

It was held that the domain name registered by the respondent was ‘identical or confusingly similar’ to the trademark of WWF and the respondent had no legitimate rights or interests in the domain name. Therefore the respondent was ordered to transfer the registration of the domain name to the complainant, WWF.

Cybersquatting in India

As on date, domain names are not defined under any Indian law. Section 2(z) of the Trade Marks Act, 1999, defines trademarks as marks capable of being represented graphically, distinguishing goods or services of one person from those of others. Mark is defined to include a “name” and any abbreviation thereof. The Act has a wide definition for services extending the ambit in relation to business of any commercial or industrial activity. The short point which the Court had to decide is whether a domain name has the characteristics of a trade or service which is available to potential users of the internet.

The concept of a domain name is new to Indian legal thinking. As such, a domain name is nothing but the address of a website, easily identifiable and user friendly, to enable consumers to connect to the internet. There is an organisation, Internet Corporation for Assigned Names and Numbers (ICANN), which is an international registration authority with limited dispute resolution powers. However, an ICANN registration does not confer any intellectual property rights9.

India’s top level domain is “.in”. The sunrise period for the “.in” domains was from 1st January, 2005 to 21st January, 2005. During this period owners of registered Indian trademarks or service marks were given an opportunity to apply for “.in” domains.the booking was opened to the public from 16th February, 2005. INRegistry is the official ‘.in’ registry. INRegisty is operated under the authority of NIXI(National Internet eXchange of India). NIXI is a non-profitable company registered under section 25 of the Indian Companies Act. NIXI has been set up to facilitate improvement Internet services in India.

The disputes relating to “.in” domain name are resolved in accordance with the .INDispute Resolution Policy (INDRP) AND THE INDPR Rules of Procedure. THE “.in Domain Name Dispute Resolution Policy” (INDRP) set out the terms and conditions to resolve a dispute between the Registrant and the Complainant, arising out of the registration and use of an “.in” internet Domain Name10.

A complaint can be filed with the .IN Registry on the following ground:

1.      The Registrant’s domain name is identical or confusingly similar to a name , trademark or service mark in which the Complainant has rights,

2.      The Registrant has no rights or legitimate interests in respect of domain name.

3.      The Registrant’s domain name has been registered or is being used in bad faith.

Companies in India have faced the brunt of cybersquatting in the recent past. Besides, the courts in India have been extremely vigilant in protecting the trademark interest of the domain owners who have suffered from cybersquatters.

 The first case in India with regard to cybersquatting was Yahoo Inc. V. Aakash Arora & Anr.,1999 PTC(19) 201 where the defendant launched a website nearly identical to the plaintiff’s renowned website and also provided similar services. Here the court ruled in favour of trademark rights of U.S. based Yahoo. Inc (the Plaintiff) and against the defendant, that had registered itself as YahooIndia.com. The Court observed, “it was an effort to trade on the fame of yahoo’s trademark. A domain name registrant does not obtain any legal right to use that particular domain name simply because he has registered the domain name, he could still be liable for trademark infringement.”

The Bombay High Court in Rediff Communication v. Cyberbooth & Anr AIR 2000 Bom. 27=2000(1) RAJ 562(Bom.)observed that the value and importance of a domain name is like a corporate asset of a company. In this case the defendant had registered a domain nameradiff.com which was similar to rediff.com. The court gave a decision in favour of the plaintiff.

In another case the defendant registered a number of domain names bearing the name Tata. It was held by the court that domain names are not only addresses but trademarks of companies and that they are equally important. (Tata Sons Ltd v. Monu Kasuri & others 2001 PTC 432)

In Bennett Coleman & Co Ltd. v. Steven S Lalwani and Bennett Coleman & Co Ltd. v. Long Distance Telephone Company (Cases No D2000-0014 and 2000-0015, WIPO), the arbitration panel gave a decision in favour of the plaintiff. In this to the respondent had registered domain names www.theeconomictimes.com and the www.timesofindia.com with network solutions of the United States. These two names are similar to the names of the Plaintiff’s websites www.economictimes.com and www.timesoftimes.com. Another important fact was that the respondent’s websites using the domain names in contention redirect the users to a different website www.indiaheadlines.com which provided India related news.

In Satyam Infoway Ltd. v Sifynet Solutions 2004 (6) SCC 145, the Respondent had registered domain names www.siffynet.com and www.siffynet.net which were similar to the Plaintiff’s domain name www.sifynet.com. Satyam (Plaintiff) had an image in the market and had registered the name Sifynet and various other names with ICANN and WIPO. The word Sify was first coined by the plaintiff using elements from its corporate name Satyam Infoway and had a very wide reputation and goodwill in the market. The Supreme Court held that “domain names are business identifiers, serving to identify and distinguish the business itself or its goods and services and to specify its corresponding online location.” The court also observed that domain name has all the characteristics of a trademark and an action of Passing off can be found where domain names are involved. The decision was in favour of the plaintiff.

In 2009, Internet software company Google Inc. won a cyber squatting case against an Indian teenager who had registered a domain name googblog.com. The domain name, Google contended, was confusingly similar to its trademark. Experts felt that complaints regarding cyber squatting were on the rise and organizations such as the World Intellectual Property Organization (WIPO) were being approached by trademark holders to resolve such disputes. On May 15, 2009, the World Intellectual Property Organization (WIPO) ordered an Indian teenager, Herit Shah (Shah), who had been using the domain name ‘googblog.com’, to transfer the rights of the domain to Google Inc. (Google).(Google Inc.v.Herit Shah,Case No. D2009-0405)

In countries like India, where there was an absence of relevant cyber laws to prevent this practice, such cases were decided within the ambit of trademark laws. Passing off action is where the defendant is restrained from using the name of the complainant to pass off the goods or services to the public as that of the complainant. It is an action to preserve the goodwill of the complainant and also to safeguard the public. In India cybersquatting cases are decided through the principle of Passing off. India does not have a law for prohibition of cybersquatting. Therefore, courts interpret the principle of Passing off with regard to domain names11.

CONCLUSION:

The active involvement of WIPO in resolving disputes regarding domain names has played a vital role in evolving concrete principles in this field. It provides a streamlined, cost-effective and swift procedure to review the claims before it. Generally the cases are expected to be decided within 45 days after filing!The World Intellectual Property Organisation (WIPO) saw a 20 per cent increase in the number of cybersquatting(abusive registration of trademarks as domain names) cases filed in 2005 as compared to 2004. In 2005, a total of 1,456 cybersquatting cases were filed with WIPO’s Arbitration and Mediation Centre, according to a WIPO release. This is just one of the solutions to the many complexities concerning the Internet.

Looking at the current situation prevailing in the world, it is certain that cybersquatting is a menace. It is a menace which has no boundaries. Cybersquatters have robbed businesses of their fortune. Looking from the Indian perspective cybersquatting has been prevalent since internet came to the subcontinent. The courts in India have decided many cases related to cybersquatting. It is the imperitive for the parliament to enact a law which would deal with this menace. Cybersquatting has opened the eyes of governments across the world and has prompted them to look into this phenomenon in a serious manner. It is high time India and other countries come out with legislations to protect this virus from spreading.

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PASSING OFF UNDER INDIAN TRADEMARKS ACT 1999: “A BIRD’S EYE

INTRODUCTION

The passing off action depends upon the principle that nobody has a right to represent his goods as the goods of somebody. In other words a man is not to sell his goods or services under the pretence that they are those of another person.

Passing off is not defined in the Act. It is referred to in section 27(2), 134(1) (c) and 135.Section 27(2) states that the rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. Section 134(1) (c) refers to injunction of courts to try suits for passing off arising out of the use of any trade mark. Section 135 specifies the remedies available in respect of passing off arising from the use of a trademark.

Now the question is arise that why passing off is necessary because already trademark given the protection to goods and services?

The Trademark is providing protection to registered goods and services, but the passing off action is providing a protection to unregistered goods and services. The most important point is that the remedy is same in both the cases but the Trademark is available to only the registered goods and services and passing off is available to unregistered goods and services. To more knowledge of this context we can summaries the case of Durga Dutt vs. Navaratna Pharmaceutical[2]; in this case the Supreme Court is set out the distinction between infringement and passing off. The action for infringement is a statutory remedy conferred on the registered owner of a registered Trade mark and has an exclusive right to the use of the trade mark in relation to those goods. And the passing off is available to the unregistered goods and services.

The second most important point is that the use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but in the case of an action for infringement this will not applicable.

The third important distinction between these two is that  if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale marked differences or indicate clearly a trade origin different from that of the registered owner of the mark would be immaterial; but in case of passing off the defendant may escape liability if he can show that the added matter is sufficiently to distinguish his goods from those of the plaintiff.

In the cases of infringement the burden is always lies to the plaintiff. In the case of S.M. Dyechem Ltd. v. Cadbury (India) Ltd. In this case an infringement action is fail where plaintiff cannot prove registration or that its registration extends to the goods or to all the goods in question or because the registration is invalid and yet the plaintiff may show that by imitating the mark otherwise, the defendant has done what is calculated to pass off his goods as those plaintiff.

What the plaintiff must establish in a passing off action?

It is essential for success in a passing off action based on the use of a mark or get up that the plaintiff should show that the disputed mark or get up has become by user distinctive of the plaintiff’s goods so that the use in relation to any goods of the kind dealt in by the plaintiff of that mark or get up will be understood by the trade and the public as indicating the plaintiff’s goods.

When the passing off arise?

The passing off action is arise when there is misrepresentation, when it is harm the existence plaintiff’s goodwill, when it is made by a trader in the course of trade, which is injure the business of another trader and which cause actual damage to the business or goodwill of the trader by the whom action is brought.

But these requirements were reduced to three in Reckitt & Colman Products Ltd. V. Borden Inc.now there are three essential requirements for the passing off action:

v  The Claimant’s Goodwill: Although damage is the gist of an action for passing off, but the plaintiff must show that there is a reasonable reason of his being injured by the defendant’s action, even if the conduct of the defendant might be calculated to deceive the public. A private individual cannot institute a suit for passing off even if the defendant practices deception upon the public, unless it is proved that the defendant’s action is likely to cause damage to the individual.

v  Misrepresentation:  Misrepresentation in the simplest form of passing off. If A says falsely these goods I am selling are B’s goods. It is a clear case of passing off. In simple way we can say that misrepresentation should lead. Or be likely to lead confusion on the part of consumers. In case ofKhemraj v. Garg[8], in this case the defendants had copied the get up, layout, design and colour scheme, etc. and the name “manavpanchang,mani ram panchang” and “shri vallabh Mani Ram panchang” of the plaintiff’s panchang.The court held that it is similar to the plaintiff’s product and Interim injunction was granted.

In the case of Rupa & Co. Ltd v. Dawn Mills Co. Ltd. In this case the defendant manufacture an underwear which named dawn as similar to the plaintiff’s manufactured underwear don, which is creating confusion in the minds of people because the layout, get up and colour combination is same to the plaintiff’s product.

v  Damage: Damages are available in a passing off action. And remedy is available in both cases whether the infringement suit or passing off action in both the cases remedy is given. 

Now the question of how the passing off action arises?

The question of how the passing off action established. I just referred the two cases first case is relating to passing off action in domain name in this regard I just refer the case ofAkash Arora vs. Yahoo Inc, in this case the court held that the yahooindia is creating a confusion in the mind of the people. And the defendant yahooindia is same as the plaintiff’s yahoo. But as a student of law I am not go with the case decision because my views regarding to the case is that his site may be better than his competitors. And second important thing is that those who access the Internet they are capable to distinguish which site is yahoo. in and which one is yahooindia.So the question of confusion is not create when the people are able to distinguish between the sites then there will be no question of passing off arise.

The second case In Reckitt & Colman of India Ltd. vs. M.P. Ramachandran & Anr,Hon’ble Calcutta High Court (Barin Ghosh, J.) laid down five principles for granting an injunction in case of comparative advertising:

i. A tradesman is entitled to declare his goods to be best in the world even though the declaration is untrue;

ii. He can also say that his goods are better than his competitors, even though such statement is untrue;

iii. For the purpose of saying that his goods are the best in the world or his goods are better than his competitors he can even compare the advantages of his goods over the goods of others;

iv. He however, cannot, while saying that his goods are better than his competitors, say that his competitor’s goods are bad. If he says so, he really slanders the goods of his competitors and their goods, which is not permissible.

v. If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the court is also competent to grant an order of injunction restraining repetition of such defamation.

The Hon’ble court also observed in this case that “One can boast about technological superiority of his product and while doing so can also compare the advantages of his product with those which are available in the market. He can also say that the technology of the products available in the market has become old or obsolete. He can further add that the new technology available to him is far more superior to the known technology, but he cannot say that the known technology is bad and harmful or that the product made with the known technology is bad and harmful. What he can claim is only that his product and his technology is superior. While comparing the technology and the products manufactured on the basis thereof, he can say that by reason of the new superior technology available to him, his product is much superior to others. He cannot, however while so comparing say that the available technology and the products made in accordance therewith are bad and harmful.”

CONCLUSION

In the conclusion the researcher concludes that the passing off action is applied in unregistered goods and services, and in infringement of suit and passing off in both the cases the remedy will be same. Then the passing off is arise in three cases first when it is injured the claimants good will, secondly in misrepresentation and thirdly in damages, where the position is same like in infringement suit. And lastly when the concept of passing off is reading with domain name and technological changes then the concept of passing off is in different dimension.

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We do not want draconian Bio-technology law

The Biotechnology Regulatory Authority of India (BRAI) Bill is going to be tabled in the ongoing budget session in Indian Parliament. If this particular bill is passed in the parliament and gets president’s assent without any modifications then India will be unsafe for the social activists who raise the voice against US sponsored perilous bio technology experiments for which Indian’s are the guinea pigs. Because the new Bio-technology law has two draconian clauses which are against the spirit of our constitution but will be a boon for Capitalist elements. So it is very clear that what has prompted UPA govt to proceed with this draconian law. The latest set back for the UPA govt came when farmers across the country stood united and stiffly opposed the BT Brinjal raising the apprehensions over its adverse effects. Following this the UPA govt was forced to withdraw from the decision to allow the commercial crop of BT brinjal. Thus it is quite clear that Govt believes it would make protesters silent if there will be a stringent law which deals with the dissident voices. One of the clause incorporated in the proposed bill says “In case an application to be submitted under sub-section 1 of Section 24 requires disclosure of confidential commercial information, such information shall notwithstanding anything contained in Right to Information Act, 2005, be retained as confidential by the authority and not disclosed to any other party.” While this clause clearly overrides access to RTI, the authority states that it has the power to decide what information is of public interest.”

The other clause says If any person “misleads” the public on safety of genetically modified organisms, shall be liable to imprisonment for a term not less than six months and a fine up to Rs 2 lakh ..

A plain reading of the bill alone conveys us the Govt has become the agents of Multinational Bio technology axis and try to create the panic among social activists who raise the voice against human right violations by genetic gaints

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Offer & Acceptance in E-contract

When a product is advertised on a website and someone accesses that website in order to buy them then the seller of the goods makes an invitation to offer to public at large through ways similar to advertisements, catalogues and shop displays, in such a case the seller does not become the offerer because he is merely inviting offers and not making an offer which a well established doctrine of law of contracts, now the buyer of the goods make an offer by accepting the terms and conditions of the seller and offers the seller of the goods to sell the goods at the price marked. When it comes to acceptance, the question which arises in our mind is that what constitutes an acceptance? Acceptance as defined in the Indian Contracts Act 1872 means, when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise. The Act also lays down the provisions regarding the situation when communication is complete, s.4 of the Act lays down that the communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. The communication of acceptance is complete –

As against the proposer, when it is put in course of transaction to him, so as to be out of the power of the acceptor.
As against the acceptor, when it comes to the knowledge of the proposer.

After analysing these two concepts under the Contracts Act, the question that arises in our minds is that whether the offer made by the buyer comes to the knowledge of the seller before the acceptance is made by the computer program on his behalf , whether the acceptance on part of the computer program would amount to a valid acceptance or not. In cases of e-contracts, even though the communication of acceptance is not complete and the computer program itself accepts the offer on behalf of the acceptor and that too without any knowledge of the acceptor but still these contract are deemed to be legal.

In present scenario, if an offer has been made, then prima facie the seller’s computer uses the set of instructions to accept the offer and evince an intention to assent to that offer. But whose intention is it exactly? There appear to be three possibilities:
(1) intention may be of the seller’s computer alone but since computers are not capable of being parties, it must follow that we do not have a meeting of minds by the parties themselves; or

(2) intention may be the seller’s alone, this view, however, is problematic given that the seller never knows of the transaction; or

(3) intention may be the seller’s though embodied in an e- program of the computer. Can this view be realistic, though, when the decision to make the offer in question has been formed autonomously by the seller’s computer?

If a question before the court of law comes about the legality of such a contract entered between the parties through a computer program, in my view the first and the second possibilities are not at all applicable to the present scenario. The third possibility, however, is more useful because this is particularly in light of powerful evidence that English courts, at least, are willing to use the option or unilateral contract device both actively and creatively.

In Great Northern Railway. v. Witham classic formulation of the option or unilateral contract: “If I say to another, ‘ I f you go to York, I will give you £100,’ that is in a certain sense a unilateral contract. He has not promised to go to York. But, if he goes it cannot be doubted that he will be entitled to receive the £100.

What would the effect be of recognizing the classic formulation as: “If you order goods from my computer, I promise to supply those goods.”

Here, it may be that the issue of whether or not the specific transaction between the buyer and the computer amounts to a valid contract is moot when the irrevocable offer, by the controller, matures into a complete bilateral contract.

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Open Source in Biotechnology

Open source is the current buzzword in the field of biotechnology. The concept was borrowed from the innovative ideas of open source software which is an anti-thesis to proprietary software. Proprietary software is characterized by keeping source code secret together with contractual restrictions on the use of the software, plus a reliance on the negative right aspects of copyright and other relevant Intellectual Property law. Open source, to the contrary, rests on collaborative development and disclosure of source code, subject to various terms and conditions. Open Source licensing is a style of intellectual property management that has evolved in the past half-decade out of the Free Software movement, initiated in the early 1980s in response to restrictive copyright licensing practices adopted by commercial software developers. The Open Source approach seeks to preserve ongoing community access to proprietary software tools without precluding or discouraging commercial involvement in their development. Open source codes are becoming more and more common. They are used by companies involved in bioinformatics, but they are used in analytical programs and for other purposes by more standard biotech companies.[1] ‘Open Source Biotechnology’(OSB) refers to the possibility of extending the principles of commerce-friendly, commons-based peer production exemplified by Open Source software development to the development of research tools in biomedical and agricultural biotechnology. This idea was proposed as a feasible solution to the problems arising out of the complex relationship between Intellectual Property Owners and Intellectual Property Users. The open source approach to biotechnology requires participants to put self-interest aside in the pursuit of innovation and potential downstream benefits.[2] Scientists “are free to use the technique without commercial restrictions, but must share any improvements they make to this scientific ‘toolkit’”.[3] The penchant for innovation and development has paved way for the adoption of open source model to subjects other than computer software. Though the subject matter of software and biotechnology differ entirely, there is a common thread connecting them. Both software and biotechnology are emerging fields of study and there are some important parallels between the two fields.  Firstly, the application of computer software and methodologies to solve biological problems. Indeed, the open development movement in some areas of biotechnology, such as computational biotechnology, is largely an extension of the Free and Open Software Movement (FOSS).[4] Secondly, a move from the specific focus of the software interface to an effort to ensure that the biotechnology tools required for research and innovation are openly available. Though the former initiative would make biotechnology technologically sound and efficient the latter move would be a catalyst for development of the “under-served” communities.  Many key innovations in biotechnology are protected by patents, but software source code was historically not regarded as patentable subject matter, instead being protected under copyright law as original works of authorship. Both the OSB and FOSS movements are reactions to the proliferation of the Intellectual Property Rights and to concerns that Intellectual Property Rights may restrict research and access to new innovations. These concerns stem from a similar basis: both software and biotechnological innovation are often cumulative and sequential, and innovations in both areas often constitute research tools[5]. Comparison of the developments in biotechnology with the nowadays popular software, such as Linux and others, would easily suggest that the world is moving towards “open source” biological systems, i.e., they are available for modification by anyone.[6] Open source biotechnology appears as a response to the dissatisfaction of researchers with the limits placed on innovation today from the combination of restriction and secrecy. The approach of biotechnology toward open source is intended to abolish, or at least reduce, problems of access to scientific knowledge and research tools associated with the proliferation of intellectual property rights and high transaction costs[7]. A detailed, realistic model of open source biotechnology can only be developed by tapping into the ideas and experience not only of those who are already engaged in the field of research and development, but also of those who are not. Clarifying the relationship between the generic open source principles and realities of biotechnology research and development will also help debunk a number of common objectives to the feasibility of open source biotechnology that are based on either factual misconceptions or faulty logic.[8] The main idea behind open source biotechnology is to share the research with a wide community of scientists and they sign agreements that trade patents for permanent access to the tools of research and database. The benefits that could be reaped by the open concept include possibly diminished costs, greater research freedom, greater quality in the developed innovations and increased speed of making new products available to final consumers. “Patent transparency is the life blood of new open source”[9] Borrowing concepts from the open source software movement, the open source projects create cooperative exchanges in which life science inventions are openly available to a broad research community.[10] Open source biotechnology projects require participants to agree that advances in the technology must remain as openly available as the original technology. It allows patenting and obtaining of royalties from commercialization of a product but leaves the patented technology to open access. Access is open to all including private sector enterprises, with an obligation for royalty sharing in the event of commercialization of a research product using the patented technology, provided they do not restrict access to further research and improvement. This is facilitated by distributing the patented research tools along with an open general license incorporating these conditions. Open source makes the availability of technological innovations to the public at a rapid pace, thereby making it available for public benefit. The very objective of patent is being accentuated by this policy. In standard-setting, no open source mechanism exists in which the public can clearly see the process and is welcome to be part of it. This would assume an educated public, at least to some degree, so a truly open source mechanism could only be implemented upon the shoulders of a broader public education mechanism.[11] Open source patent systems share the goal of promoting free dissemination of biotechnological research. The aim is to foster an environment of sharing between inventors and the public rather than market place monopolies. Open source systems can be directed at end products or research tools used to develop products. Some consider open source to represent a grass root movement to return to pre-commercialization sensibilities about scientific research and development, where there was greater ethos of freely sharing scientific information among members of the scientific community.[12]

An Australian scientist, Richard Jefferson, who heads the non-governmental organization, Cambia (Centre for the Application of Molecular Biology to International Agriculture), has evolved an innovative open source solution to meet intellectual property constraints in   agbiotech[13]. CAMBIA develops and patents technologies for all needs of plant biotechnology. It licenses the use of their technologies, with a royalty free license, provided that any improvements on the technology be made publicly known and be license free. This is akin to open source Linux computer software. Having the technologies as “open source” leads to what they call “collaborative invention” as all biotechnologists working with the open source material further develop it for all and innovations are quickly disseminated, in stead of remaining proprietary knowledge within a company. This can be of distinct advantage to those trying to increase crop diversity, by further domesticating less-grown crops, especially those in the developing countries where resources are thin.[14]The open source agbiotech is not advocating against patents but preaches the use of patents to ensure that research is not hindered yet return on investment is ensured. It advocates patenting of research tools as leaving it in the public domain would enable a patent holder to command control over development of a product. The quid pro quoarrangement is that, in return of the open access there is an obligation to pay royalty in the event of commercialization of the patented technology and there should be no restriction on access to further research and improvement. This is facilitated by distributing the patented research tools along with an open general license incorporating these conditions. Open source agricultural research facilitates innovation by small biotechnology companies by promoting open access to technologies. This will enable development of locally suited technologies and reduce dependence on giant agribusiness conglomerates.

The BiOS (Biological Innovation for Open Society) Initiative is also known as Open Source Biotechnology. The BiOS model has resonance with the Open Source software movement-well known for the successes such as Linux and has spurred faster innovation, greater community and participation, and new robust business that break monopolies and foster fair competition.[15]

By analogy with FLOSS, Open Source Biotechnology (OSB) incorporates a distinctive approach to[16]:

• Developing new biotechnologies.

The characteristic mode of development of new biotechnologies is bazaar governance also termed as ‘commons based peer production’. Defining features of this mode of production include

(1)    Integration of contributions from a broad range of participants (individuals, commercial firms and state or private non-profit organizations);

(2)   Diverse motivations to contribute, none of which rely on exclusionary property rights.

(3)   Coordination of contributions through self-selection for tasks on the basis of freely accessible information about the object of production itself, as distinct from direction by superiors in a hierarchy or self-selection on the basis of price signals;

(4)   Low barriers to engagement: technology users are free to become developers according to their own incentives and capacities, irrespective of formal qualifications and without the necessity of making any long-term commitment; and

(5)   Sharing of contributions on terms that permit broad (though not necessarily unlimited) freedom of access and freedom to operate.

In real life OSB projects, bazaar governance would predominate but would coexist with firm, market and network structures enforcing a mix of other (private) incentives. These private incentives could be further supplemented by collective action style incentives and public subsidies of the kind that already support biotechnology research and development (R & D).

• Open Source Licensing

OSB is distinct from ‘open access’ or ‘public domain’ regimes in which innovators refrain from obtaining Intellectual Property Rights or other forms of proprietary or quasi-proprietary protection for their innovations. In OSB, as in FLOSS, contributions are legally owned by the innovators or their assignees but are licensed to all comers on terms that, at a minimum, offer a credible commitment to provide ongoing access to the licensed technology and guarantee a level playing field between licensor and licensee with respect to freedom to operate with the licensed technology.

Open Source licenses are intrinsically and radically pro-competitive. Optionally, OSB licenses may also impose an obligation on licensees to on-license improvements to the technology on the same terms as the original license. Such an obligation would normally apply only to a defined subset of improvements and would not apply to any improvements that are reserved by the licensee/developer solely for in-house use. This mechanism inspired by a subset of FLOSS licenses known as ‘copyleft’ or ‘reciprocal’ licenses, is designed to give both licensors and licensees (in their capacity as licensors of any improvement technologies) ongoing access to a dynamic, legally protected technology commons incorporating  updated versions of the original technology as well as any new technologies based on it.

• Commercialization

A key feature of the OSB approach that distinguishes it from pre-existing forms of bazaar governance (typified by the practices underpinning traditional publicly funded scientific research) is the nature of the relationship it fosters between the commercial and noncommercial contributors.

Traditionally bazaar-style production has frequently involved the transfer of commercially valuable technologies from public and nonprofit sectors without fair compensation and/or adequate recognition of the substantial public subsidy thereby indirectly provided to private/corporate players. In OSB, the relationship between commercial and noncommercial participants would be synergistic and symbiotic, not parasitic. In other words, non-commercial contributors would provide opportunities for commercial players to enhance their profits while commercial players would bring private resources to the production of public knowledge.

The objective of open source biotechnology is to break the grip and monopoly of huge multi nationals on the tools of innovation. Thus, the balance is shifted from the rich and powerful to the poor, underserved communities. If the multi nationals are allowed to hold the basic tools and gene sequence that are the operating systems of life, promising new sectors will be left undeveloped.[17]About 20 percent of the human genome is controlled by patents, of which about two-thirds are owned by private firms. Taking a collaborative open-source approach could speed efforts to reduce hunger and disease.[18] The patenting of ‘enabling technologies’ affects the development of crops by research institutions, whether private or public. Further, applied agricultural research involves derivative development on existing varieties and with each incremental improvement new Intellectual Property rights get added resulting in multiple Intellectual Property holders on innovations. The result is a situation where a single institution will not be able to provide freedom to operate with a particular technology or invention.[19] Research in the field of biotechnology is expensive, partly because researchers need to purchase even the right to research from a dozen related patent-holders, even when there is little chance of creating a marketable product from the research.

The notion of ‘copyleft’ which envisages free study, copy, distribution and modification of software is applicable only in the case of bioinformatics. But, the other research activities in biotechnology are subject to patent rights and hence ‘copyleft’ is not applicable. Although OSB entails fewer transaction costs than a conventional proprietary approach, it does not eliminate IP-related transaction costs altogether. Unlike a fully ‘public-domain’ or ‘open access’ approach, OSB does involve IP ownership and does require technology users to enter into a license contract. In addition, copyleft-style open source licenses place conditions on the distribution of downstream technologies that, despite their nonproprietary purpose, do limit freedom to operate with respect to those technologies.[20]

Patent is an incentive in the form of limited monopoly granted by the State to the inventor for the disclosure of his information. The limited monopoly grants the inventor economic rewards by way of manufacture, use, sell or import of a product or process for 20 years. The patent law recognizes the exclusive right of a patentee to gain commercial advantage out of his invention. This is to encourage the inventors to invest their creative faculties, knowing that their inventions would be protected by law and no one else would be able to copy their inventions for a certain period during which the inventor would have exclusive rights. Thus, patents grant economic rewards for the promotion of invention. The patent grant provides the owners of patents with a period of market exclusivity, during which they can include a royalty component to out-license their technology in exchange for upfront fees and/or royalty sharing. In this way, patents provide the necessary financial incentive to develop new technology commercially. However, patents also have the potential to deter rather than encourage innovation, particularly when they claim rights to inventions at the upstream end of the research-development continuum[21]. Open source in biotechnology makes this monopoly brittle, thereby reducing the economic reward. Thus, an argument could be advanced that it would reduce long term innovation. But open source would be a facilitator of downstream non- economic rewards.

Another important role of Open Source is its ability to infiltrate through the patent thicket in the patent regime. A patent thicket is “a dense web of overlapping intellectual property rights that a company must hack its way through, in order to actually commercialize new technology.”[22] Thus, it can also be a retaliation against the ‘Tragedy of the Anti-commons’. Patents often are cited as examples of tragedy of the anti-commons because a patent owner has exclusive rights over the use of patented technology. If the creation of a certain product involves the use many technologies and components patented by different people or different companies, then it can be very difficult to negotiate effectively with all the patent holders at once, and the result may be that one has to pay so many license fees that it becomes too expensive to create the desired product. Thus, a product that is in great demand may be produced because costs associated with patents are too high.[23] Anti commons tragedy in biotechnology is triggered by high transaction costs associated with assembling a ‘tool kit’ composed of multiple proprietary elements. If the owner of one of these proprietary elements were to adopt an OSB strategy, then the overall transaction costs would, in principle, be proportionally lowered because anyone, anywhere would be sure of obtaining permission to use, modify and distribute the relevant technology element for any purpose without ongoing obligations to the owner.[24]

One can think of open source licensing as a form of grantback clause, because the licensee is required to make its own intellectual property available to others, including the licensor, while open source licenses commonly compel licensees to turn to grant access to their intellectual property to others, thus extending the reach of the license beyond the scope of the intellectual property grant, there are several reasons to doubt that these agreements raise anti trust concerns. First, few open source licensors have market power. Second, the extent of the required grant is limited to intellectual property actually incorporated in products that use the licensed technology, rather than extending to unrelated or potentially competitive technologies. Finally, the openness that is required is always non-exclusive, rather than an assignment or exclusive license back to the licensor. Indeed, the requirement of openness permits anyone to benefit from the licensed technology, not just the original licensor. For these reasons, it seems unlikely that an open source license will constitute patent or copyright misuse.[25]

Due to the ease of patenting biological discoveries, it is likely that anyone working in biomedical research will have to use several patented procedures in order to create a marketable product. However, since those patents are short-lived and only a few patents result in marketable product, those developing new treatments or processes often find that negotiating a licensing agreement with the patent holders is prohibitively expensive and will result in product being unmarketable. In fact, a patent holder can often say that mere research is in infringing use, and demand a license fee even though the chance of developing a marketable product is slim.[26]

Patent owners who are effectively free to dictate the terms of use of an established test may choose to license it broadly, asking only a reasonable royalty from all laboratories that offer the test to patients. On the other hand, they may choose to restrict license to selected laboratories or even to a single test provider. In the latter case, the consequence can be severe. Monopoly control over a particular test tends to limit accessibility and increase costs, with obvious negative implications for the equitable provision of cheap health services. Quality assurance is also compromised: with only a handful of test providers, regulators may find it not cost effective to develop adequate proficiency testing[27].

Any contributor to an OSB project may be motivated by the anticipation of[28]:

• Process Benefits

In the FLOSS context, process benefits include fun, learning and social interaction with like minded peers. Biotechnology industry participants do sometimes invest in research and development activity solely or primarily for the sake of analogous process benefits. At the corporate level, potential process benefits of participating in OSB development include organizational learning, developing and maintaining a wide range of inter-organizational linkages and establishing a corporate reputation as competent and trustworthy collaborator. All are commercially relevant in biotechnology and related industries, where the ability to engage in productive collaborations across firm boundaries is crucial to retaining a competitive edge.

• User Benefits

The primary rationale for choosing OSB approach is that it permits prospective users to share the cost and risk of developing a new technology and depending on the chosen license terms, potentially gain free access to valuable downstream technologies. Further, an OSB approach may enhance the usefulness of the technology by expanding the number of people who can help eliminate design flaws and introduce new features.

• Non-proprietary Business Opportunities

Mainstream or conventional biotechnology business strategies typically rely on property rights as a means of excluding non-paying users from accessing or commercializing the technology. By contrast, non-proprietary business strategies are designed to exploit the enhanced value to a firm’s clients or customers of technologies whose use, modification and redistribution are relatively unrestricted and which are therefore likely to be cheaper, more readily available and of better quality.

• Restructuring Competition

A crucial feature of open source is that it promotes free and open competition with respect to the technology in question. Although commercial players generally prefer to protect themselves from competition wherever possible, they always want to ensure competition among their suppliers.  Other ways, an OSB approach might be used to restructure the competitive landscape in an industry sector to contributor’s advantage including creating the opportunity for several smaller firms to combine resources against a larger competitor or attracting customers away from established technology provider.

Peer review may play a crucial role in enhancing biotechnology, and safety concerns might reinforce preferences for open approach rather than proprietary secrecy. Companies using biotechnology to deliver other services, such as health care, rather than just selling genetic products might well prefer open source suppliers. It would appear that open source approaches might be relevant for many aspects of biotechnology, although there would likely still be major areas where proprietary approaches would retain advantages.[29]

At a minimum, open source approaches might offer some useful options concerning the regulation of intellectual property rights related to genetic resources. The example of computer code shows how collective open source efforts can thrive, even while knowledge is produced and used within commercial activities. Similar principles might apply concerning genetic codes. Rather than a purely proprietary or purely public approach to intellectual property in genetic resources, a more differentiated approach might be feasible. Such an approach might facilitate collective action to discover and make available genetic knowledge in ways that would be difficult through purely public or private approaches. In at least some cases, proprietary rights may be neither necessary nor even the best way to promote innovation, while dumps into sources of valuable materials.[30]

Despite the fact that OSB promotes access to research tools and encourages user innovation, there are deep concerns over the fact that it would actually curb the private returns that would have ensued by licensing the innovation. However, open source fits very well within a collaboration-strengthening pyramid because one of the attractions of open source methods for opening up information exchange is that they involve minimal upfront investment on the part of technology developers.[31] The open source group, however, is not trying to restrict the amount of core plus improvement technology available, by ensuring that the improvements remain openly available. Such an effect would be better described as ultimately increasing rather than reducing the supply of the downstream product.[32]

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