Impediments to Cross-Border Trademark Dispute Resolution in the Digital Era: A Study With Reference to India

Abstract

The digitally clad world today has made thing easier but has also brought a novice paraphernalia to human’s existence. The internet has made human interaction like butter especially in the e-commerce scenario. The collision of the internet with commerce along with Intellectual Property Rights has resulted in an ecosystem that is new for the consumers, businesses, legislators, lawyers as well as the judges. Trademarks as an IPR is of utmost importance that ensures good and healthy competition. The way trademarks are perceived today in the digital era is not conventional but rather they are know seen a domain names. Domain names are virtual trademarks that the companies utilise as their web address similar to shops in the physical world. The disputes that are pertaining to trademarks in the virtual world are cybersquatting, typo squatting, reverse domain name hijacking, meta tags, hyperlinking and framing. The nature of these disputes are different as they are not geographically bound but in fact are cross border. Cross border disputes are those that happen when two different countries having different domestic laws are at dispute. The issue with such disputes is the lack of a common legal ground, but the international bodies have tried to resolve these international disputes. The Universal Declaration of Human Rights (UDHR) vide Article 27 recognises the importance of protection of a person’s production whether it is scientific, literary or even artistic. Protection of the trademarks is non-negotiable in today’s world where infringement has taken a new virtual shape. The World Intellectual Property Organisation (WIPO) and the Internet Corporation for Assigned Names and Numbers (ICANN) along with the Uniform Domain-Name Dispute Resolution Policy (UDRP) work in consonance to settle the international disputes pertaining to the domain names but there are certain impediments in the resolution of these disputes which this paper has tries to bring forth. The jurisdiction of the international disputes always remains doubtful in comparison to the domestic laws of the disputing parties. The application of the law also requires better cooperation and harmonisation. Thus the advent of of the internet along with the pace of the growth of domain names in a borderless digital world has left a loophole which the infringers use to their benefit resulting in international conflicts and difficulties in the resolution of the trademark disputes which are of international character.