Delhi High Court: Petitioner filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (‘the Act’), assailing an arbitral award dated 04-04-2023 under the “.IN Domain Name Dispute Resolution Policy” (‘INDRP’) and by the impugned award, the arbitrator had directed that a domain name registered by petitioner i.e., ‘kashmirharvard.edu.in’, be transferred to respondent, President and Fellows of Harvard College in USA. Prateek Jalan, J.*, held that it did not find any grounds to hold that the impugned award was contrary to Section 34(2) of the Act. The Court opined that the arguments advanced by petitioner showed a scant regard for the limited scope of intervention with an award in an international commercial arbitration, or for the process of the Court. Further, the pleas were advanced, which were contrary to the record, and attempt after attempt was made to mislead the Court. Thus, the Court imposed Rs 50,000 costs against petitioner.
Background
Petitioner imparted school education in the name and style of “Kashmir Harvard Educational Institute” in Srinagar and it had registered a domain name with the ‘.in’ domain name registry being ‘kashmirharvard.edu.in’ (‘the disputed domain name’).
On 16-11-2022, respondent submitted a complaint to National Internet Exchange of India (‘NIXI’) under the INDRP, seeking cancellation of the disputed domain name or transfer thereof to respondent. Respondent was a charitable and educational corporation incorporated in the Commonwealth of Massachusetts, USA and was established in 1636. It claimed to have used the ‘HARVARD’ mark since 1638 in connection with educational and research goods and services offered by it. Harvard established a Harvard trade mark programme, under which it enforced and licensed its trade marks described as the “HARVARD Marks”. It also had online learning services under the name HarvardX and it operated a website ‘www.harvard.edu’ and social media accounts which include the name “Harvard”.
Respondent sought cancellation of the disputed domain name, or transfer of the domain to itself, on the ground that it was identical or confusingly similar to a trade mark or service mark in which it had a right, that petitioner was ineligible for rights or legitimate interest in respect to the domain name, and that the impugned domain name had been registered or used in bad faith.
Respondent was an entity incorporated outside India, therefore, the arbitration in the present case, falls in the category of “international commercial arbitration” under Section 2(1)(f) of the Act. Consequently, petitioner confined his argument to a challenge on the ground of natural justice under Section 34(2)(a)(iii) of the Act and conflict with public policy of India under Section 34(2)(b)(ii) of the Act.
Analysis, Law, and Decision
The Court with respect to petitioner’s contentions concerning breach of the rules of natural justice, opined that petitioner had failed to make out a case of breach of the principles of natural justice as petitioner had received the notice of appointment of arbitrator, notice of commencement of proceedings (including time granted for filing of statement of Defence), notice that the Tribunal proposed to proceed ex parte, and the award itself. The Court opined that this contention in the synopsis did not find reflection in the body of the petition and was inconsistent with petitioner’s communication and therefore, it was clearly an attempt to mislead the Court.
The Court opined that petitioner had admitted receipt of the electronic and physical copies of the award, and the rules of natural justice did not require that service of the same document be effected by each of several modes which might be provided as the provision of several modes of service was intended to ensure that service was effected by at least one mode.
The Court took note of Clauses 2 and 16 and purpose of the INDRP and opined that it was clear that any dispute with regard to “.in” domain name was within the scope of the policy and petitioner’s domain name was admittedly in this category. The Court rejected petitioner’s contention that the disputed domain name ought to have been set out in full in the “discussion and findings” section of the impugned award and thereafter observed that the impugned award itself showed that the disputed domain name was clearly stated in the heading of the award, even prior to the parties’ names of the parties.
The Court held that it did not find any grounds to hold that the impugned award was contrary to Section 34(2) of the Act. The Court opined that the arguments advanced by petitioner showed a scant regard for the limited scope of intervention with an award in an international commercial arbitration, or for the process of the Court. Further, the pleas were advanced, which were contrary to the record, and attempt after attempt was made to mislead the Court. Thus, the Court imposed Rs 50,000 costs against petitioner.
[Kashmir Harvard Educational Institute v. President and Fellows of Harvard College, 2024 SCC OnLine Del 612, decided on 31-01-2024]
*Judgment authored by: Justice Prateek Jalan
Advocates who appeared in this case :
For the Petitioner: Keshav Thakur, Mahesh Prasad, Malak Mathur, Prithvi Thakur, Ritik Kumar, Advocates
For the Respondent: R.K. Aggarwal, Ayushi Bansal, Vinay Padam, Advocates
Buy Arbitration and Conciliation Act, 1996 HERE
