Typosquatting- An Evil In Cyberspace

Imagine a young Indian child while surfing Internet, wants to visit a website "www.indianchild.com" in order to read short inspiring stories, omitting letter "a" types "www.indinchild.com" negligently, will reach a website containing adult content. Again the situation will become worst when that child tries to close the window but unable to do so and with his every attempt a new window opens on his computer screen. In prior case, he becomes an innocent victim of Typosquatting and in later one, he becomes victim of mousetrapping, a typical Typosquatting method. The aforesaid situation could also be faced by all internet users irrespective of their age group because typosquatters have been targeting different categories of websites. In other words, today Typosquatting is omnipresent in the virtual world.

The business of typosquatting is not only targeting websites devoted to children but this evil has been spread all over in cyberspace. The McAfee had released a research report^[1] that shows that five most highly squatted website categories are game sites (14.0%), airlines (11.4%), main stream media company sites (10.8%), adult sites (10.2%) and technology and Web 2.0 related sites (9.6%). No doubt, Children sites are highly targeted by typosquatters but Consumer focused and popular websites are also targeted by more typosquatters.

Internet is one of the biggest technological advancement in the history of science and technology. The Internet has become a useful source for a wealth of information. Many businesses, relying heavily on customer website usage, distinguish products through their trademarks, which indicate quality and help develop brand names.^[2] Thus, using trademarks as domain names helps businesses to create a strong presence on the Internet.^[3] Yet, domain name registration, once a convenient identification method for consumers, has become a profitable venture for clever entrepreneurs such as Cybersquatters including Typosquatters.^[4]

A Typosquatter is a kind of Cybersquatter, who intentionally registers misspelled domain name variation of the legitimate domain name of a company. Generally, Cybercriminals uses typosquatting tactics in order to make pecuniary benefit from the mistakes of internet-users.

Typosquatting is too rampant today and it can be check out by the fact that even the website of World Intellectual Property Organization, the organization which is invested with the authority by ICANN to handle the cases of cybersquatting and typosquatting at international level, has also been targeted by typosquatters.^[5] In the year 1997, a typosquatter created an adult and political entertainment website "www.whitehouse.com" similar to the official website of Whitehouse "www.whitehouse.gov" and he made millions from his website alone.^[6]

Moreover, the role of Google was challenged in a suit filed against Google over typosquatting. Harvard University professor Ben Edelman says Google profits from typo-squatting websites that run ads using Google's Adsense -- which, ironically, are often bought by the owners of the legitimate sites web surfers were trying to visit.^[7] Edelman and other lawyers have filed a class action lawsuit representing domain owners who claim the 'Google Adsensefor Domains' (AFD) program is assisting in violating trademarks.^[8]

United States is the first country that criminalises Typosquatting by passing a law 'The Truth in Domain names Act' in 2003. 'The Truth in Domain Names Act, 2003' is enacted to prevent the use of deceitful domain names for the purpose of attracting surfers to pornographic websites. But most of the countries do not have any specific law to combat 'Typosquatting' and the courts in such countries apply traditional trademark law on typosquatting cases. The traditional trademark law is only an alternative but not a solution to typosquatting and due to lack of specific legislation against typosquatting, typosquatter easily get an opportunity to spread this menace.

The word 'Typosquatting' has been allegedly coined by famous typosquatter John Zuccarini to describe his conduct of registering common misspellings of well-known domain names.^[9] John Zuccarini is one of the worst known Typosquatter in virtual world. He typosquatted more than 5000 Domain Names to divert Internet surfers and earned over million dollars.

Typosquatting, also called URL hijacking, is based on the probability of a considerable number of internet users would make typographical error while net-surfing. The two typical typosquatting methods adopted by Typosquatters for their evil game of Typosquatting are "Mousetrapping" and "Redirecting." Either a Typosquatter adopts method of "Mousetrapping" or he takes help of "Redirecting" technique. Beside these two methods an important process followed by a Typosquatter is "Domain Name Tasting".

Typosquatters make money by putting pay-per-click ads on their typosquatted web pages. The ads are generated by keywords related to the misspelled product, for instance, for Nokia typos, one might see ads for cell phone accessories, ring tones or calling plans. Typosquatting becomes profitable through continuously clicking on various ads which open one by one continuously. It is clear beyond doubt that no single misspelled domain will generate enough profit to provide a living to the typosquatter, but a large portfolio of even slightly profitable domains can generate significant income.

The economics of typo-squatting lead some analysts to describe this as a phenomenon of the long tail, the concept that the ease of Web navigation enables even the most rarefied content or product to earn some small amount of traffic and therefore, revenue.^[10] Professional Typosquatters often hold domain portfolios in the thousands or more because Individual domains may return only a few dollars but when multiplied by the thousands, those few dollars can become significant.

A domain name owner who becomes victim of Typosquatting usually sends a cease and desist letter to the offender at first stage in order to stop the infringing activity. Moreover, he may also try to purchase the domain name from the typosquatter, which could have been the typosquatter's aim. And if the Typosquatter does not stop the activity then lawsuits will be taken against the offending site or typosquatter. There are two types of remedies available against a Typosquatter: (1) Administrative remedy- a person can file a petition in World Intellectual Property Organization's (WIPO) Arbitration and mediation center against Typosquatter under UDRP (uniform domain name dispute resolution policy) established by 'Internet Corporation of Assigned Names and Numbers' (ICANN). In India, .IN Domain Name Dispute Resolution Policy (INDRP) was formulated by the .IN Registry which is applicable for .in domain names. (2) Civil remedy- a person can file a civil suit in a court of law against Typosquatter under traditional trademark law of country or under any other concerned statute, if exists.

Moreover, there are technologies in the market to combat Typosquatting, for instance, Microsoft has released a software "Strider Typo-Patrol" to help combat Typosquatting.^[11] This is a tool that scans and shows third-party domains that are allegedly typosquatted. It also lets parents restrict access to typosquatted domains that show sexually oriented ads on children's web sites.

In US, The first case under the Truth in Domain Names Act, 2003 (TDNA) was brought against John Zuccarini, and he was arrested in September 2003 in Florida. The TDNA, 2003 was proved effective as under the act, the most notorious Typosquatter John Zuccarini sentenced to imprisonment.

In India, there is no law in existence to combat this evil of Typosquatting, there are no specific provisions under the Information Technology Act 2000 to deal with typosquatting. Our Law makers do not respond against this evil of typosquatting despite the fact that this illegal activity is universal in nature. The only remedy is to bring an action under The TradeMarks Act, 1999, the sole enactment for the protection of Domain name in India. Generally the courts all over the world applied their respective Trademark Laws in order to resolve domain name disputes.

In India, the legal development in this respect has been made by various judicial pronouncements. Though the word Typosquatting was not used in the case, the first case in India with regard to Typosquatting, decided by Delhi High Court, was Yahoo Inc. V. Aakash Arora & Anr.^[12] In this famous case, 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 (a typosquatter), that had registered itself as YahooIndia.com.

The Delhi High Court rejected the argument that the provisions of the Indian Trade Mark Act would not be attracted to the use of the domain trade name or domain name on the Internet. 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." This case was the first case in India in which a Trademark law applied in a Domain name dispute.

Moreover, the lack of specific legislation does not deter the courts from taking action against typosquatters. In Satyam Infoway Ltd v Sifynet Solutions Pvt Ltd ^[13], the Supreme Court held that "As far as India is concerned, there is no legislation which explicitly refers to dispute resolution in connection with domain names. But although the operation of the Trademarks Act 1999 itself is not extraterritorial and may not allow for adequate protection of domain names, this does not mean that domain names are not to be legally protected to the extent possible under the laws relating to passing off."

The legislative approach of United States against typosquatting is more advanced than that of India and it can be proved from the fact that US Congress passed a law on typosquatting in 2003 and even before that it already had ACPA enacted in 1999 which applies on Cybersquatting as well as on Typosquatting, while in India still no law has been enacted by legislature against typosquatting. However, it is only Indian Judiciary that is trying its best to solve domain name disputes like Typosquatting by applying traditional trademark laws to such disputes. It is necessary for the Indian Parliament to enact a law which would deal with this menace. Moreover, Law against typosquatting is unlikely to have major effects on typosquatting business unless all countries enact similar laws on the issue. Therefore, a uniform law on Typosquatting all over the world would definitely give a blow to Typosquatting.

The author is an Advocate at the Supreme Court and Views are personal.