Next Stop – Injustice (INDRP Review)

According to our law books and theories, Justice is defined as the quality of being just; righteousness, equitableness, or moral rightness, But practically justice in our current era is something you search for years but you lose everything you find, it is a system where there’s braille for the deaf and a signpost for the blind, there’s heaven for the cruel but the devil waits for the kind. Something similar has happened recently, not so while back I encountered an INDRP dispute decision which made me question the basic principles of justice being taught in our law books. Apparently what we are being taught in the books and how the system actually works are two entirely different things. The given dispute is between a company which develops/implements certification examinations for nephrology nursing and a man who was denied of justice. Lets study the dispute in depth.

NEPHROLOGY NURSING CERTIFICATION COMMISSION v. S  KUNDALA.

Disputed domain – NNCC.in

Arbitrator – VISHESHWAR SHRIVASTAV

Case summary

In the given dispute complainant is a company which develops and implements certification examinations and is called nephrology nursing certification commission. The complainant is the owner of the trademark (NNCC) which is registered on US soil,  It is alleged that the Complainant has never authorized, licensed or otherwise permitted the respondent to use the name, trade mark or domain name consisting of NNCC. Complainant alleges that the registration of the disputed domain has been done in bad faith and the respondent doesn’t have any legitimate interest or rights in the disputed domain. The complainant also alleges that the registration was done in bad faith and the real intention of the respondent was to sell the domain for profit. The respondent replied to all the allegations in a very systematic and beautiful manner, lets study the points put forward by the respondent and try to find out where did he go wrong.

1. The respondent begins his response with the point of “Non Exclusivity of the trademark – NNCC” This means that the infringed trademark is not exclusive, It is a four letter acronym which has various meanings all around the world. It all means that several domains with NNCC mark has already been registered and the mark ‘NNCC’ doesn’t have any real meaning nor it can be associated to any single entity.
2. Then the respondent replies with the point of “Willful Failure of the Complainant to assert their Rights“. This means that the Indian domain name variants of the Complainant’s primary website <www.nncc-exam.org> are available. Yet so far the complainant hasn’t registered the domain which proves that the Complainant is not interested in protecting its business or apparent good will, but is rather interested in harassing the Respondent.
3. “Complaint Limited by Doctrine of Laches” This means that the Complainant did not register this domain name till October 2015. It was only in October 2015 that the respondent registered this domain name. The complainant had enough time since 2005 to register the domain yet he did not do so.
4. ” Complainant does not own the mark ‘NNCC’ in India” It was found that complainant did not own any mark in India and complainant is not known in India, which means there is no way the respondent would have known about the complainant’s mark. The trademark application filed in India cannot be considered a valid proof of the Complainant’s ownership in the mark ‘NNCC’ as the trademark application may very well be dismissed by the Trade Mark Registry.
5. “Respondent’s legitimate use of the domain name” It has been held by numerous Panels that having automated ‘pay per click ads’ is legitimate use of the domain name, provided that the domain name does not target the Complainant’s trademark.
6. “Respondent’s lack of Bad Faith” The Respondent has never approached the Complainant or any other party to sell the domain name and has never misled or targeted the Complainant’s customer, Moreover, even if the Complainant’s customers would want to go to the Complainant’s Indian website, it is very likely that they will visit the ‘.IN’ variant of the Complainant’s primary website which is <www.nncc-exam.org>.

1. “Reverse Domain Name Hijacking” the Complainant has not attempted to register the .IN domain name extensions of their primary domain name <www.nncc-exam.org> as well as the fact that the Complainant did not register or try to acquire the disputed domain name before October 2015. Hence the respondent alleges that the complaint has been filed in bad faith to harass the respondent. The respondent also provides a list of domains which are available for the complainant to register which is much more associated to their business instead of disputed domain.

The respondent also submitted multiple disputed decisions which had similar factual backgrounds and the decision was in the favor of the respondent. Now if you study the points stated above can you spot the flaws or understand where did the respondent go wrong? no? its because the response filed by the respondent above is perfect in every form, It is truly artistic in nature and counters all the allegations filed by the complainant effectively. Yet he lost the dispute, but how? if the response is perfect? if he is able to prove his legitimacy over the domain then why he has lost the dispute? could it be external factors? How can arbitrators ignore the basic trademark law applied in the above dispute? would it be safe to believe that the registry is ignoring the rights of the respondent and giving a chance for the respondents to defend their domains in an INDRP dispute is nothing but mere formality? Many similar questions arise from the dispute above, but one thing can be concluded safely that the justice was denied to the respondent above, the decision did not only effected the respondent but also the faith of many people (including me) on the judicial system of INDRP. This simply means that none of our domain assets are safe till registry try to understand this system from our point of view.  Injustice anywhere is a threat to justice everywhere. You can read the dispute in detail by clicking here.