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Suhasini Haidar
in New Delhi

Yahoo!, perhaps the most recognisable brand name on the Internet, sued Netlink Internet Solutions of New Delhi last month for using the yahooindia.com domain name.

Now the Indian company is preparing to challenge the injunction against it.

A law expert predicts the case will drag for years but is happy that it will throw up issues that will force Indian legislation to make a first-hand encounter with the reality of global computer networks that completely disregard political borders.

Netlink Internet Solutions had set up the yahooindia.com site that mimicked the look and feel of the popular California based company's asia.yahoo.com portal.

However, yahooindia.com limited most of its services to search engine facilities.

The penetration of computers and the Internet in India is far from saturation. In fact PC and Internet usage is expected to snowball only now after the government has opened its monopoly market to a host of private Internet service providers.

Naturally, all serious players in the Internet business are keen on the country. Yahoo! moved the Delhi High Court and obtained an injunction against Netlink for trademark and copyright infringement. It now intends to sue Netlink for an undisclosed sum, which Yahoo! spokespersons say will be a "deterrent for other domain name infringers".

Besides, objecting to the yahooindia.com domain name, the Yahoo! petition alleges that the site also has content that is "confusingly similar" to Yahoo!'s Asia site at asia.yahoo.com.

This is significant because, though domain name disputes in India have been ruled upon before, the Yahoo! case is the first to raise copyright issues related to content on the Internet.

"They copied everything from the masthead and the format of the Web page, to even the actual wording used on the Web site. They are all the same as ours," claims counsel for Yahoo! Pravin Anand. He is a leading expert on patent rights.

Netlink Internet Solutions defends that because both companies run search engines, the content of both are bound to be similar.

Netlink counsel Harish Malhotra points out that "After all, the telephone directory for New Delhi is going to look the same, whether it is published by MTNL (the phone company) or any private company. The categories as well as the entries are bound to be identical. We are definitely going to appeal the decision of the high court."

Justice M K Sharma's judgement is one of the first in cases relating to intellectual property right infringement on the Internet.

While granting an injunction to Yahoo!, Justice Sharma referred to the defendants as "cyber squatters", a term used for companies that infringe on domain names in order to deflect business from the original domains.

The first reports of crimes on the Internet in India are beginning to appear in the national press. There are only an estimated 190,000 Net connections in India but that number is growing fast. And this growth is pushing up the opportunities for advertising on the Internet, raising the stakes all around.

Justice Sharma's judgement specifically says that companies must be protected from loss of revenue due to domain name infringement.

However, Yahoo! counsel Anand feels the damage done to his clients is not purely monetary. "After all, anything that these cyber squatters put out on the Net under a domain name which contains the word 'Yahoo' will reflect on my client, who are the original owners of the 'Yahoo' trademark. My client's reputation is at stake here as well."

In order to illustrate this point, the lawyers for Yahoo! took a portable computer into Justice Sharma's court and logged on to the Internet.

Indian courts have traditionally been reluctant to accord copyrights and trademarks to foreign companies in preference to their Indian counterparts, partly due lack of enough legislation. But matters are very much more complex in Yahoo!'s case.

Justice Sharma's injunction establishes the principle for India that the protection of trademarks and copyrights extend to publications on the Internet as well.

Netlink has since withdrawn its yahooindia.com site. The Indian company is also willing to alter the content of the site but maintains that there is no justification in asking them to give up the yahooindia.com domain name. The company points out that the domain is likely to attract only those who are looking for India-specific information.

"Yahoo! doesn't, at present, even have an India-specific search facility. Where is the question of confusing our site for theirs," asks Malhotra. "Internet users are educated people and they will not, by mistake, go to the wrong site address," he argues.

Law of the lands But on whom exactly is the Indian court's injunction binding and how will it be executed? Can Justice Sharma's order become binding on a US organisation that issues the domain names making up addresses on the Internet? Why has Yahoo! moved an Indian court instead of one in the US where the organisation that issues the domain names is based? An attempt to answer such questions will force us to step out of the Internet's virtual topography into the real world of political geography. Internet site addresses are typically words separated by dots. Like www.rediff.com The letters after the last dot like .com, .net, .gov, .org, .in and .ae are called top-level domain names. These tell us what the site is about or which country it is registered in. .com tells us that the site belongs to a commercial organisation as opposed to .org for a non-profit organisation. .net is for a site that pertains to the Internet itself and .gov indicates a government site. Some top-level domain names tell us about the country in which the site has been registered. Like .in is for India and .ae is for the Arab Emirates. .us describes the United States but it is the only country that need not use it. The US can be recognised by the absence of a country suffix. Hence a business like Rediff On The Net's Internet server address, located physically in India, could read www.rediff.co.in with top-level domain name .in indicating India and second-level domain name .co indicating nature. The same company's address for a server located physically in the US could be www.rediff.com. Here, there is no country suffix indicating that the site has been registered in the US and the top-level domain name of .com is now describing the nature of the site. All countries have organisations that maintain registers of domain names at all levels in order to ensure unique addresses in the virtual world of the Internet. In the United States, Network Solutions Inc is the worldwide registrar of Internet second-level domain names within the top-level domain names. If the American owner of original.com feels that existence of notoriginal.com is detrimental to its business, it can set about convincing Network Solutions to withdraw notoriginal.com. But if the owner of notoriginal.com resides outside of the US, the American owner of original.com will have to obtain an injunction in its favour from a proper court of the foreign land. Only, if such an injunction reaches a US court, Network Solutions can put notoriginal.com domain name on hold.

Related sites:

• Network Solutions' domain name dispute policy
• Yahoo!
• Yahoo's Asia site
• The yahooindia.com site has been pulled off.

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