At the international level, Internet Corporation for Assigned Names and Numbers (ICANN) is managing the dispute resolution pertaining to domain names. The Uniform Domain-Name Dispute Resolution Policy (UDRP) of ICANN is frequently suggested to be used for trademark disputes and domain name disputes. ICANN has prescribed a very selective list of approved dispute resolution service providers who can alone adjudicated disputes pertaining to domain names.
Thus, the domain name dispute resolution mechanism of ICANN is not only managed by selective few institutions but it is also a costly affair as arbitration fees has to be deposited to invoke UDRP proceedings. This means that even in the clearest case of trademark violation, cyber squatting and commission of a crime, the aggrieved person has to approach ICANN approved dispute resolution provider and has to deposit fee for invoking the dispute resolution procedure.
Anybody who has dealt with ICANN must be aware that ICANN never takes any action against the guilty domain name registrars no matter whatsoever wrong doing they have been engaging in. ICANN accredited registrars take advantage of this position and they openly flout laws of India.
As per the Information Technology Act, 2000 and the Information Technology (Intermediary Guidelines) Rules, 2011, an Indian domain registrar who is accredited to ICANN and operating in India is an intermediary and it is required to follow cyber law due diligence to escape Internet intermediary liability in India.
However, domain name registration service providers like Public Domain Registry [publicdomainregistry.com] are not at all complying with Indian laws, especially the IT Act, 2000. Even ICANN is aware of such non compliance and is shielding such registrars instead of taking a punitive and administrative action.
We have already lodged a criminal compliant against Public Domain Registry before the Delhi Police and are now exploring other legal options in this regard. We have also brought to the knowledge of ICANN about such criminal complaint, irregularities and lack of compliance of the part of Public Domain Registry.
We have also contacted GoDaddy in this regard and it has informed us that GoDaddy is not at all involved with the offending domain name in question. This means that GoDaddy’s name has been wrongly allowed to be used by both the domain registrar Public Domain Registry and ICANN despite being well aware of the irregularities and illegalities.
This entire episode has forced us to think how ICANN must be made accountable for not respecting laws of other jurisdictions like India. Recently, Indian government has prescribed that domain names ending with .in extension must not use privacy protect facilities and must disclose their true identity. Most of the domain name service providers operating in India have complied with the requirement.
On similar terms, the Indian government must mandate that domain name service providers operating in India must comply with Indian laws on priority if there is a conflict between the Indian laws and the agreement between ICANN and such domain name service provider.
Although this is the actual legal position as on date yet an expression declaration in this regard would help in clearing any doubts about this proposition. India must also work in the direction of making the role and influence of ICANN negligible while dealing with Indian domains and Indian domain name registrars.