Bom HC | Domain name Registrar can’t black list or block list a domain that is registered; No human element involved in overseeing legitimacy of any chosen domain name

Bombay High Court: G.S. Patel, J., while addressing a matter with regard to domain names registrations held that,

Domain name Registrar can’t black list or block list a domain that is registered.

Endurance Domains Technology LLP, an Indian Domain Name Registrar is authorised to function by the National Internet Exchange of India.

Endurance Domains provides inter alia registrations of India-specific domains apart from other more commonly used and known top-level domains such as .com, .net, etc.

Plaintiff, HUL has a registration of a number of valuable trademarks covering a range of products. Plaintiff has the domain name www.hul.co.in. Its global parent is www.unilever.com.

Fake and fraudulent domain names

Defendant 5 and various person and persons unknown have been using variants of HUL’s domain name to register fake and fraudulent domain names and to set up websites. The purpose is to entice and lure the unsuspecting public into parting with significant amounts of money on a completely false promise of being made authorised dealers of HUL products.

Number of fraudulent domain names have been pointed out in the present Interim Application and the said domains name registration have been effected through — Endurance Domains, GoDaddy or Porkbun.

Court stated that it has no doubt that the registration of the said domains is entirely malafide, not in good faith, constitutes an infringement of Plaintiff’s valuable statutory rights.

What form the injunction should take?

Bench stated that, domain names are, typically, never ‘owned’. They are always registered for a fee and for a specified time, typically a one-year minimum. 

There is no human element involved in overseeing or assessing the legitimacy of any chosen domain name. Once the domain name is registered, it must point somewhere to be effective.

A domain name may have its registration suspended, but the domain name registrar cannot ‘block access’ to that domain name.

Dr Saraf stated that Endurance Domains has already substantially complied with the request by HUL in respect of domain name listed, if not, it will do so at the earliest.

Blocking Access

An ‘access blocking’ instructions only serves to block access to a remote website or server (possibly overseas) from an IP address of domestic origin, i.e. from the country ordering the block. Any such ‘block’ is easily circumvented by masking the originating country IP of the user.

Bench stated that, other than lulling an applicant into a completely hollow and faux sense of safety (and conceivably giving some ill-informed government functionary an entirely unwarranted sense of power or authority), blocking access achieves next to nothing.

To ask for the ‘continued suspension’ of domain name registration is also technically incorrect: High Court

Any domain name Registrar can always suspend a domain that is registered, but they can’t put it on a black list or block list.

Hence, a ‘continued suspension’ is therefore not possible or practicable at least in the current technology.

Further, Mr Tulzapurkar on behalf of the plaintiff says that the Plaintiff cannot be expected to constantly make applications every time a new domain name is discovered.

Court for the above stated that, 

I do not see why not. The Plaintiff is not short of resources and skills, even in the legal department; and the Plaintiff is a well-known and well-established litigant.

Another important observation

I do not think it is for any court to come up with mechanisms to protect the Plaintiff’s interest at low or no cost, or by turning a plaintiff into judge, jury and executioner, let alone sub-contracting out what I believe to be a serious judicial function of assessing and balancing rival merits. What should or should not be suspended (or blocked) is for a government to decide, not some litigant. There are no shortcuts. All this: prima facie; two mantra words that seem to have become some sort of balm in the frenzied jurisprudence of interim and ad interim litigation.

Court’s Time

Court permitted HUL as an exceptional case, if it is unable to get the negotiated relief directly from one of the domain name registrars who are already parties to suit, to file an Affidavit listing the domain names in questions and to approach the Court after serving a copy of that affidavit on the domain name registrar in question.

I am doing away only with the requirement of a formal IA, not the requirement of coming to Court; and this is only done to ease the burden on the Court. This part of the order is, obviously, liable to be reviewed, modified or recalled at any time.

[Hindustan Unilever Limited v. Endurance Domains Technology LLP, 2020 SCC OnLine Bom 809 , decided on 12-06-2020]

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