WHEN YOUR NAME IS TAKEN: DOMAIN NAME DISPUTE RESOLUTION, CYBERSQUATTING, AND THE LIMITS OF POLICY-BASED JUSTICE IN BRAND PROTECTION

Authored by Saisunder N.V and Vishaka

Introduction

In the physical world, a trademark distinguishes a business; in the digital world, a domain name is more- it is an address, an identity, and often the first point of consumer interaction. Losing control of a domain name can therefore mean losing the gateway to a business’s online presence.

Cybersquatting has grown alongside the internet. In 2025, WIPO recorded over 6,200 UDRP complaints, the highest ever, reflecting the continuing rise of cybersquatting, phishing and identity theft. Yet, while specialised domain name dispute mechanisms offer efficient and globally recognised remedies, they have structural limitations. This article compares the Uniform Domain Name Dispute Resolution Policy (UDRP) and Indian Domain Name Dispute Resolution Policy (INDRP) framework with traditional trademark infringement and passing off remedies, and examines how the two complement each other.

1. Understanding Cybersquatting – A Taxonomy of Digital Bad Faith

Cybersquatting is the bad-faith registration of a domain name corresponding to another party’s trademark or business identity, typically to extract money from the rightful owner or exploit its goodwill. Classic cybersquatting involves registering a well-known brand’s name such as <tatamotors.in> or <reliancepetroleum.in> before the brand owner does, then holding it for ransom. Typosquatting targets predictable typing errors- <flipcart.in> instead of <flipkart.in> to divert traffic from users who mistype. Name-jacking registers the personal names of celebrities or public figures increasingly. Nowadays AI-assisted bulk registration of confusingly similar domains are trending amidst cybersquatters.

1. The UDRP – The Global Policy Framework

The UDRP remains the principal mechanism for many generic top-level domains such as .com, .net and .org. A complainant must establish three cumulative elements: (i) the domain name is identical or confusingly similar to a trademark in which the complainant has rights; (ii) the registrant has no rights or legitimate interests in the domain name; and (iii) the domain name was registered and is being used in bad faith. The usual remedies are transfer or cancellation.

Proceedings are document-based and generally do not involve oral hearings. They are comparatively fast, cost-effective and jurisdictionally neutral, making them particularly suited to clear cases of cybersquatting. The 2025–26 review of the UDRP reflects its continuing importance while identifying areas for procedural improvement. WIPO’s optional priority service introduced in March 2026 further reduces the time available for urgent cases.

III. The INDRP – India’s Framework for .IN Domains

The .IN Dispute Resolution Policy (INDRP), formulated by the .IN Registry, broadly mirrors the UDRP. A significant distinction is the third element: while the UDRP requires a domain to have been registered “and” used in bad faith, the INDRP uses “or”, requiring bad faith in either registration or use. This disjunctive formulation can be more favourable to complainants.

The INDRP is administered as arbitration under the Arbitration and Conciliation Act, 1996, giving its awards the status and enforceability associated with arbitral awards under Indian law. It generally provides an efficient route for disputes involving .IN domains.

1. Effectiveness- What Domain Name Dispute Policies Do Well

Compared with traditional litigation, UDRP and INDRP proceedings offer four principal advantages.

First, speed. A domain being used for phishing, fraud or reputational harm may require urgent intervention, making a streamlined proceeding considerably more effective than litigation that may take years.

Second, cost. Domain name proceedings are significantly less expensive than conventional trademark litigation and are therefore accessible to SMEs and individual brand owners.

Third, jurisdictional neutrality. A registrant may be located in one country, use a registrar in another and target consumers elsewhere. UDRP proceedings largely avoid the jurisdictional difficulties associated with pursuing such a respondent through courts.

Fourth, evidentiary simplicity. Proceedings are generally decided on written submissions and do not require discovery, depositions or physical appearances. For clear cases where bad faith is evident, this streamlined process can produce an effective result quickly.

1. The Limitations – Where Policy-Based Proceedings Fall Short

The efficiency of domain name dispute resolution comes at a structural cost. These mechanisms principally answer one question: should the domain name be transferred or cancelled? They are not designed to provide a complete remedy for the broader legal and commercial harm caused by cybersquatting.

The remedies are narrow. UDRP proceedings generally result only in transfer or cancellation; INDRP may, in appropriate cases, also permit monetary damages. They do not provide the broader injunctive, compensatory or accounting remedies available through courts. Thus, a brand owner may recover a domain after years of customer diversion or reputational damage without obtaining meaningful compensation or deterrence.

The proceedings also concern the domain name, not necessarily the website or underlying conduct. A panel may order transfer of a domain used for a phishing portal, counterfeit goods or infringing content, but it cannot comprehensively regulate the underlying website activity.

Further, the frameworks do little to address repeat offenders. A habitual cybersquatter may register another confusingly similar domain after losing one proceeding. The absence of a systemic deterrent allows serial cybersquatting to become a business risk rather than a meaningful legal liability.

Finally, these proceedings are poorly suited to factually complex disputes. Where a respondent asserts a prior right, legitimate business interest or coincidental use and the complainant needs evidence regarding identity, intention or commercial arrangements, the absence of discovery and compellable evidence becomes a significant limitation. Courts can compel evidence and investigate the broader dispute.

1. Traditional Infringement and Passing Off – A Deeper but Slower Remedy

India does not have a dedicated anti-cybersquatting statute comparable to the United States’ Anti-Cybersquatting Consumer Protection Act. The Information Technology Act, 2000 also does not specifically address domain name disputes. Indian courts have therefore developed domain name jurisprudence principally through the Trade Marks Act, 1999 and the common law of passing off.

Section 29 of the Trade Marks Act can apply where a registered mark is used as a domain name in circumstances likely to cause confusion or suggest a connection with the registered proprietor. Section 134 also provides jurisdictional advantages to trademark proprietors.

Passing off has similarly been applied to domain name disputes. Beginning with Yahoo! Inc. v. Akash Arora and reinforced by cases such Satyam Infoway, Indian courts have recognised that domain names can carry goodwill and that their deceptive use can amount to passing off.

The biggest advantage of approaching a court is the wider range of remedies available. Unlike domain name dispute proceedings, courts can not only order the transfer or suspension of a domain name but also grant permanent injunctions to stop further infringement, award compensation for losses suffered, direct the wrongdoer to surrender profits earned from the infringement, and pass various orders to identify anonymous offenders and preserve evidence. As a result, court proceedings can address not just the disputed domain name itself, but the broader commercial and reputational harm caused to the brand owner.

VII. The Indian Legislative Gap – A Case for Reform

India occupies an unusual position. Its courts have developed a sophisticated body of domain name jurisprudence, while the INDRP provides a functional administrative mechanism for .IN disputes. Yet India has no dedicated legislation addressing cybersquatting as a distinct wrong. India’s expanding digital economy makes the absence of a statutory framework increasingly significant.

A dedicated anti-cybersquatting provision within the Trade Marks Act, 1999, or a standalone enactment could consolidate available remedies, provide a clearer statutory basis for damages and strengthen deterrence.

Conclusion – A Tool, Not a Substitute

UDRP and INDRP provide a fast, cost-effective means of recovering a domain name in clear cases of cybersquatting. However, their remedies are limited and may not address the wider commercial harm caused by the infringement since they are a tool, not a substitute for judicial remedies.

The choice of remedy should therefore depend on the objective. UDRP or INDRP may be the preferred route for recovering a domain, while court proceedings may be necessary where the dispute involves damages, broader injunctive relief, website activity or other commercial harm.

Ultimately, the two mechanisms are complementary: UDRP or INDRP may win you the domain; where the harm extends beyond it, the courts can provide the fuller remedy.