Small Business Solutions

Businesses involve contracts, ventures, arrangements, and agreements with other business entities. Sometimes, these transactions turn into disputes. Business disputes arise when one or more party fails to honor their end of the deal in an agreement. This causes both parties to argue with each other. This at times leads to legal actions.

If all these disputes lead to court actions, every court all over the United States will be crowded with business dispute cases. Hence, the Alternative Dispute Resolution was born. This aims to encourage out of court settlements instead of litigation processes.

The Alternative Dispute Resolution or ADR is a series of positive and organized procedures for resolving disputes with the mutual consent of the parties involved. ADR encourages the parties to engage in negotiations to settle the dispute.

Business owners have options in dealing with this matter. They have four options to be precise. These are the following:

1. Direct Negotiation

Direct negotiation is a dispute resolution process wherein the two disputing parties work together and come to a resolution on their own. The parties communicate directly with each other without a third party who shall oversee or help with the dialogue.

This resolution process is the cheapest way to resolve a conflict. It needs no court fees, attorneys’ fees, or other payments. It only requires that the two parties are there, willing to exchange sides regarding the disagreement. This form of resolution calls for effective planning, communication and negotiation skills.

2. Arbitration

This is a resolution wherein the parties in a dispute refers it to a third party, called the “arbitrators.” The neutral party listens to the problems and arguments of both sides, examines their evidence, and renders a decision (award) after careful analysis.

Arbitration awards are generally an award of damages against a party. Both parties are bound to agree to the award, this is referred to as the “binding arbitration.” The arbitrator’s decision is final.

3. Mediation

Mediation is another form of resolution which aims to make disputing parties reach an agreement. The parties meet together with a mediator/s. In this case, the mediator assists them in the negotiation of their differences, but leaves the power to decide between the parties. The parties should be able to come to a mutual decision.

Mediation starts on a joint session and then proceeds to a separate caucus between the mediator and each individual party or their attorney. Mediation is strictly confidential. Thus, everything that is said and discussed in this process will be held in private and cannot be deemed admissible in court or in any other proceedings.

4. Litigation

If the parties cannot settle into an agreement by using an alternative dispute resolution, then their last option is to file a civil case in court. The purpose of business litigation is to determine which side is right or wrong.

Majority of business disputes do not go this far since it entails the most drawbacks. The whole process involves a lot of work, and consumes substantial amount of time and money. However, it is still considered a suitable option.

Nevertheless, most legal actions should not have happened if only companies did abide with the terms of the business agreements they got involved with. Hence, it is very advisable to seek the aid of a business lawyer before engaging in any type of business agreement. This to fully understand the possible advantages or consequences that one may get from such contacts.

For a better understand about the proper manner of entering a business agreement, log on to our professional Los Angeles lawyers website.



By: Jinky Belle Abelardo

About the Author:

small business resources

Neeraj Aarora: AICWA, LLB, PGD (Cyber & DLTA), CFE (USA)

Arbitration is an alternative dispute resolution mechanism provided by a stock exchange to resolve disputes between the trading members and between trading members & constituents (i.e. clients of trading members), in respect of trades done on the Exchange. This process of resolving a dispute is faster than other means of redressal by civil courts. Arbitration comes under the Arbitration and Conciliation Act 1996. The Act allows two options— conciliation and arbitration. Conciliation is similar to an out-of-court settlement where the parties find acceptable resolution and a stamp of legal finality is marked on the case. Arbitration, on the other hand, is a quasi-judicial mechanism where arbitrators decide on a case (like a judge or a bench) and pass an order which is called an arbitration award. However, the byelaws of the exchange provide the procedure for Arbitration. The investor can procure a form for filing arbitration from the concerned stock exchange. All the cases have to be filed within 6 months of the dispute arising.

In the recent judgment of Delhi High court in SMT BIBA SETHI Vs DYNA SECURITIES LTD, OMP NO. 63/2007 decided on 17th March, 2009 Hon’ble Judge, RAJIV SAHAI ENDLAW held that “the part of Byelaw 3 of Chapter XI of NSE Byelaws, to the  extend prescribing limitation of six months for reference of disputes/claims to arbitration is void. The time therefore will be governed by the limitation act.”

The Judgment shall provide a relief to the thousand of investors who has to file the suits in the civil courts on expiry of six Months time for filing the claim with the arbitration. Normally, the broker uses delay/dilatory tactics with the client resulting into loss of opportunity of clients to invoke the arbitration clause. The clients are left with no option but to file suit in the civil court where the adjudication process takes a couple of year. Now, the clients can invoke the arbitration clause within three years i.e. the time prescribed by the law of limitations. The decision of the High Court would also result into substantial reduction in the number of cases filed in the civil court in last two years as these cases can now be adjudicated/referred to the summery proceedings of the arbitral mechanism of the   stock exchanges.

Any Quarry Please Send the mail neeraj@hazenlegal.com



By: Neeraj Aarora

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Alternative Dispute Resolution is one of the best solutions in modern law. While the courts today are overcrowded and in many provinces the amount of cases like personal injuries just can’t be handled fast enough – alternative solution (through any other resolution than litigation) usually is the best solution. It is most often practiced in such areas of law as: commercial, construction, elections, employment, federal practice, insurance, international, labor and securities. In some areas 90% of the cases are solved throughout alternative resolutions. Alternative Dispute Resolution has lot of advantages compared to litigation, it is usually cheaper and more expeditious. Also it can be focused only on the solution of the problem and not on court procedures, so is it more effective for both sides. Usually the alternative resolution is proposed after the initial hearings stage. One of the biggest advantages of the Alternative Dispute Resolution is flexibility. Basically any conflict resolution within legal rules can be considered and alternative solution. Still there are five main types of Alternative Dispute Resolution: negotiation, mediation, collaborative law, hearing and arbitration.

Negotiation is a voluntary procedure with no third party that facilitates the resolution process or imposes a resolution. This type of Alternative Dispute Resolution is the easiest one for both of the sides, because everything can be solved between the parties with no additional people, still this solution is impossible in a large number of cases because the sides are not ready for negotiation (are having emotional problems during a divorce for example).

Mediation is procedure where a third party (a mediator) is facilitating the resolution process. While this party even the right to suggest a resolution, but does not impose a resolution on the parties.

Collaborative Law (collaborative divorce) is not quite an alternative resolution but rather a litigation variant, still it allows to solve the dispute without the active participation of the sides. In this type of resolution, each party has an attorney, which facilitates the resolution process within specifically contracted terms and mutually-agreed experts. No one imposes a resolution on the parties, however, the process is a formalized process that is part of the litigation and court system.

Hearing is a procedure that is less formal that trial. Mostly hearings are public with definite issues of fact or law to be tried, in which witnesses are heard and evidence is presented.

Arbitration is a procedure where participation is typically voluntary, and a third party (acting like a private judge) is present. The third party imposes a resolution during the process of arbitration. Mostly such type of resolutions occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. If such agreement was made it is usually called ‘Scott Avery Clause’. During the recent years the enforceability of arbitration clauses (in consumer agreements mostly) has drawn scrutiny from courts. Of course there is always a possibility to appeal arbitration outcomes to courts, but appeals will face an exacting standard of review.



By: Rebecca Brown

About the Author:

small business articles

Alternative Dispute Resolution (ADR) comprises the gathering of the parties to a contract, with a trained independent person – the mediator, to explore whether a mutually satisfactory elucidation can be found to the dispute that has stirred up between them. ADR is a locale of law where we dynamically seek to; improve the law, course of action and practice. It includes mediation, adjudication, arbitration, conciliation and ombudsman schemes.

Most business owners in India are small business owners, contending in an ever more intense and flattening global milieu. As can be seen from the efforts of the current administration to reform the judicial structure, there are many nuisance identified by the business interests. In business, commitments are to be committed. These commitments constitute both written and verbal contracts. The parties making these promises rely upon each other to fulfill them. When one of them fails to keep up the promises, disputes are bound to arise.

Conventionally, in the event of a breach of contract, one party hires a lawyer and begins a negotiation process with the counterpart(s), which may or may not achieve the satisfactory results. When it doesn’t, one is off to the court with a lawsuit. Lawsuits have inherent disadvantages for business- the parties lose control, the lawyers and the judges become the masters of timing and procedure, and as a result disputes can take years to wind up through the system. The parties lose the ability to communicate with each other in order to resolve the problem. Relationships are ruined. The cost of business escalates significantly due to these delays and the lawyer’s fee. Businesses embroiled in litigation can lose a competitive edge too. Often small business owners have a narrow supply chain and their businesses suffice mainly upon their personal relationships. These personal relationships become embattled with the advent of a lawsuit. Lawyers instruct their clients not to discuss the case with the opponents outside their presence, thus bringing communication—the lifeline of trade and commerce—to a halt and standstill.

Shifting to a global standpoint, it is an irrefutable fact that the Earth is flattening for business. We compete not only with other local businesses, but also with the tactical alliances which extent all over the globe. Lawyers know that it may prove thorny for them to coerce overseas businesses to answer in overseas courts. Moreover, it could be a fiscal catastrophe to allow competition to gain deliberate advantage with sharp use of cheaper, customized, and more capable way to resolve the inevitable problems associated with business. International business norms must acclimatize to the flattening world through intelligent use of alternative dispute resolution in order to remain competitive. Top firms are predominantly incorporating mediation in their contractual agreement prior to instituting litigation. Mediation is a much suppler vehicle than the court structure for resolving business disputes.

Mediation has much advantage over the routine court procedures.

Charge Rather than lawyers and judges dictating the terms of the dispute resolution, the parties remain in charge of the entire state of affairs. A concord is achieved only if it is acceptable to both sides.

Constructive Channel of Communication When binding mediation is integrated into the contract, the parties expect to keep the dispute de-escalated, and time and again holdup in engaging an external attorney for a time sufficient to entirely survey each and every potential mode the dispute can be resolved. This affords maximum prospect to allow a healthy business relation keep flourishing.

Creativeness An able and skilled mediator can support the parties to vessel a workable solution which may involve a nifty and artistic alternative which is almost impossible in the court system or even arbitration. The potency of the mediator to think outside of the box is his/her stock in trade. With mediation, the costly war is, at best, prevented, and at worst, held in abeyance to enthusiastically pursue peace.

Mediators are chiefly accomplished in navigating impasses that the parties can not conquer. It is a proven fact that on most of the occasions, war can be ended only after the combatants are dog-tired, either psychologically or monetarily. In this case, mediation can aid in performing a rationalized detection to obtain facts which are the core of the dispute. Therefore, even if litigation can not be evaded totally, mediation can assist in accomplishing a quicker conclusion.

Triumph in any business clash is calculated by serenity, which results in the incessant success of the project. When common earning is at stake, it is fundamental that the parties swiftly shift to endeavor full and fair resolution. A mediator can assist in this process, and construct a concrete scheme to frame the relationship further to thwart snags and foreseeable future disputes.



By: Kshitiz Karjee

About the Author:

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eBay has quite an intricate and long-winded dispute resolution procedure. Below you can see what’s involved and how long it takes.

As an example, let’s go through what you would do if you paid for an item but didn’t receive it from the seller.

Before you open a dispute: Give the seller a chance to send the item before you get ahead of yourself and open a dispute. If you’re concerned about how long the item is taking to arrive, the first thing you should do is send a polite email to the seller saying that you haven’t received it and asking whether they have posted it. You should also check your own email address in eBay’s options, to make sure that the seller can reply to you. As a last resort before opening a dispute, you should try to call the seller on the number eBay has for them. You might have to pay long-distance charges for the call, but that’s better than dragging the auction through mediation for months.

Step 1 – You open an Item Not Received dispute: You can do this here: http://feedback.ebay.com/ws/eBayISAPI.dll?InrCreateDispute.

All you need to do is enter the item number and say that you did not receive the item.

Step 2 – eBay contacts the seller: eBay sends the seller an email that tells them that you’ve said you didn’t receive the item. Then can then choose to tell you one of three things: that your payment hasn’t cleared yet, that the item is in the post, or that they’ll give you your money back. The seller can also tell eBay that they would like to send you a message.

Step 3 – You talk to the seller: You try to work out what’s happened directly with the seller, sending messages back and forward. Hopefully they’ll agree to give you a refund for the sake of their feedback, or your item will turn up in the post during this time.

Step 4 – Closing the dispute: After 30 days (or 10 days if the seller didn’t respond), you have two options to close the dispute: either you were satisfied or you weren’t. If you weren’t satisfied, then you can claim under eBay’s purchase protection program for up to $200.

Independent Dispute Mediation.

If you don’t want to go through eBay’s own process, and especially if the auction was for a high-value item, then you can use a third-party mediator. eBay recommend SquareTrade, at www.squaretrade.com, who provide mediation to many websites where there are buyers and sellers. They will contact the seller on your behalf and then mediate as you negotiate what to do from there.

Sellers who are committed to going through SquareTrade’s mediation for any disputes can sign up to display the ‘SquareTrade seal’ on their auctions. This gives their buyers $250 fraud protection, and shows that their identity has been independently verified so they are who they say they are.

When your sellers aren’t in such good standing, though, you need to be careful to avoid being a victim of fraud. There are a few scams that you especially need to look out for.

Read More articles on Authority Guide



By: Sachin

About the Author:

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One of the most important components of your career management is dealing with conflict. To be a successful manager, you need to be efficient in workplace conflict resolution.  Conflict in the workplace is a common and natural occurrence because of constant work pressure and the tight deadlines.

 

The conflict could be between office colleagues, regardless of their positions, or it could be with clients or customers. Whichever case it may be, workplace conflicts impact on productivity, effectiveness, efficiency, and overall atmosphere of the workplace. If the conflicts persist, they have the potential to damage working relationships, and can have a negative impact on the working environment.

 

Workplace conflicts can result from:

§          Misunderstanding & Miscommunication

§          Task disputes

§          Subtle discrimination

§          Cultural and religious clashes between the employees.

§          Workplace aggression

§          Workplace violence

§          Workplace gossip

§          Backstabbing coworkers

§          Poor professionalism

§          Office politics

 

The workplace environment should be positive, and help people to prosper.  This is the responsibility of the organization leaders, the managers, team leaders and others in the workplace. When you see conflicts, you may need to intervene, and resolve them.  You’ll therefore need good conflict resolution skills for workplace conflict resolution.

  

Conflict coaching is recommended and an organization’s leaders should take conflict resolution training programs. The conflict courses or the conflict training program teach safe and proven techniques that help in workplace conflict resolution.

 

Managing conflict is an art.  An employee’s self-esteem can be affected in a restrictive workplace if the conflicts are not handled properly.  To be effective at workplace conflict resolution, you should be an active listener, care about others, value other persons, have good communication skills, the right attitude and approach, and above all not be biased while resolving the conflict between the employees. You can learn about this (and much more) at the conflict resolution training.

 

If you are interested to know more about Workplace Conflict Resolution please search our site  (www.sfhgroup.com/) for more in-depth information and resources.



By: Radek Cecha

About the Author:

quickbooks training

When a nasty dispute arises within a business environment, a friendship, a family or love relationship – even between nations – most of the time it could be avoided. That does not mean that everyone has to agree on everything or that some people have to give in to others in order to avoid a dispute. What it does mean is that everyone can maintain her/his opinion while respecting the opinion of others. The first step in agreeing to disagree is to listen to the other without judgment, knowing that it is okay to have different opinions; it is okay to disagree. In other words, agree to disagree.

WIN-WIN OR WIN-LOSE?

When a disagreement first occurs, if each person is willing to listen in this non-judgmental way, then every voice can be heard and everyone will gain a better understanding of the other. From this position of greater understanding, a compromise of sorts can usually be negotiated – finding that middle ground where it can be a win-win rather than a win-lose.

In the world we often see bitter conflicts between nations; each side apparently determined that there should be no win-win situation despite the horrendous losses that result from war. Many times it requires the intervention of third parties to provide the cool, unequivocal and calming negotiating skills so badly needed to bring about something resembling a peaceful settlement. At the end of the day, it is worth remembering that conflict is man-made, a product of the beliefs of those wielding power, sometimes called collective egoism.

To achieve win-win in any dispute it may be necessary to set aside the issue for a time and then revisit it at a later date. That is definitely the right move if emotions are running high. To be effective, the discussion must be rational and constructive. With emotions set aside, each party will be better able to define and communicate appropriately and respectfully what is acceptable and what is completely unacceptable. This creates a negotiating stance and from there reasonable compromises can be identified. Taking a one-step-at-a-time approach makes it very possible to arrive at a resolution that is mutually acceptable.

I AM RIGHT; YOU ARE WRONG

In situations where there is really no need to agree because neither party is truly affected by the other’s opinion – it may simply be a conversation sharing opinions – it can be very easy to agree to disagree. Yet, that is not what usually occurs especially when discussing topics that are ‘hot’ for some people, like religion or politics. Much of the time, people do not agree to disagree – some do not even have the slightest notion that it is an option. In these cases, emotions and unconscious motives are usually in control. People want others to agree with them – they want to be ‘right’. Indeed fanaticism stems from the firm belief that ‘right’ is totally on their side – which of course is a belief shared by the other side who also think they have ‘right’ on their side! We’ve all experienced a situation when someone got into a strong convincing mode which then escalated into an argumentative stance. Nothing but ‘being right’ and having agreement from others would satisfy the person. Tolerance is not usually a word in such a person’s vocabulary.

We can surmise that one possible reason a person behaves this way is because she/he ‘needs’ to be right. This person could be looking for a mirror that would validate her/his beliefs, thoughts and actions. Without this ‘mirror’ she/he may feel insecure and uncertain of herself/himself. This can be and many times is an unconscious thought pattern. The person is not necessarily consciously aware of the deep sense of insecurity and uncertainty she/he carries.

Then too this person could also be a bit more extreme in her/his narcissistic traits. We all have narcissistic traits – a certain amount of self-centeredness and self-regard is needed and is healthy. However, there are many whose narcissistic traits are more excessive and intense. Basically someone who fits this description has little regard for others and is only concerned with her/his own gratification and dominance. This person is typically unable to understand that the needs, opinions, feelings, etc. of others are just as important as her/his. And again, these tend to be unconscious patterns.

WHEN PASSION IS NOT SHARED

Another possible reason for trying to convince is that the person may be very passionate about the topic and doesn’t realize the impact they are creating with their expressed zeal. When a person is very passionate about something, there is a tendency or a need to get others to fully understand and ‘get it’. Although being passionate and having a strong conviction about a topic is a good thing, it is always beneficial to notice the impact one is having on the other person. Burning passion may be what one person feels, the impact of it on another may be perceived as aggressive, especially where that passion or conviction is not shared. So, in such a case, the best way to win people over – if that is what is required – is not to get more passionate, but less, and watch and listen to how those being addressed are receiving the information

Thus agreeing to disagree, or finding a way to compromise, could bring us a much more peaceful world with far less aggression and far less stress. this applies to the micro relationship level right the way through to macro international diplomatic talks.



By: Julie Molner And Lynn Hull

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Some call it forum shopping. Others call it preparation. Given the choice, wouldn’t you choose the latter?

When involved in a domain name dispute, you have the opportunity to select the body that will arbitrate the dispute. Because of this, you have the ability to choose the forum in which you will resolve the dispute, just as you would choose the service provider for your mobile number.

However, which forum you finally choose should depend upon the specifics of your case.

The two most popular domain name dispute resolution providers are WIPO (World Intellectual Property Organization) and NAF (National Arbitration Forum). Although both UDRP providers, WIPO and NAF have different fee structures, decision turn-around times, and other nuances explained in their respective supplemental rules.

Regardless of the specifics of the different resolution providers, the number one consideration when deciding whether to choose WIPO, NAF, or any other, should be based upon a review of how Panels decided cases similar to yours. Both WIPO and NAF provide access to their decisions at:

WIPO http://arbiter.wipo.int/domains/cases/index.html

NAF http://www.arbforum.com/domains/decisions.asp

With the ever-increasing number of decisions available, it is important to be able to form an educated prediction as to how a particular service provider’s panel would resolve your case. When selecting your dispute resolution provider, looking at prior decisions to find a trend can help, but it would be even easier if you knew both the majority and minority views on particular issues that commonly arise in the UDRP so that your case could better address the specific issues that the panelists have raised in the past.

It is in researching and interpreting the majority and minority views where a law firm specializing in domain name disputes can help most. Ideally, you should choose a law firm with background knowledge of both trademarks and the UDRP, but the best choice would also carry case-tested experience in dealing with the different forums and the issues that arise in their deliberations.

In the end, it is not asking the law firm too much to do an initial review of your case, peruse decisions issued by both service provider’s on the particular issue, and ultimately provide a risk assessment of your case. You can contact us today to provide such a service, and if you so choose, assist you in filing a complaint, responding to a complaint, or simply navigating your way through the UDRP.



By: Enrico Schaefer

About the Author:

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AN ANALYSIS OF DOMAIN NAME SYSTEM AND DISPUTES INVOLVED

By

Pankaj Kumar

 

Introduction

 

Just few years back born ‘the concept called internet’ multiplied itself in such a fast rate that now it emerged with different products, relating to almost every field of the economy. It entered into the business world in such a way that it resulted in the emergence of new policies, laws, bodies, etc of the government, new profession, society, means of communication and many other things. Pointing towards the negative side of this development, we can see the problems standing side by side of this development. It gave room to a separate branch of crime known as ‘cyber crime’. There is another major problem for which most of the countries are not even matured to cope with it. This problem is known as ‘domain name disputes’. This aspect of IP laws is currently dealt under trademark laws of many countries, and on the other hand World Intellectual Property Organization (WIPO) and Internet Corporation for Assigned Names and Numbers (ICANN) have also developed certain policies to resolve these disputes. Now days the fight for domain names is not only affecting the rights of the holder but also adversely affecting the business cycle of the world.

 

WHAT ARE DOMAIN NAMES?

 

Internet has created a global society in which we have been allotted the intangible houses for which the main gate is tangible, known as ‘computers’. The term ‘address’ for this society has been replaced by the term ‘Uniform Resource Locator’ (URL). The representations of this URL are known as Domain Names. The computers identify themselves by the help of a unique number known as the Internet Protocol (IP) number. Since these numbers are difficult to remember, it has been represented by particular names which we called as the domain name. For example, ww.lawspace.com   

 

In technical sense, domain name comprises group of alpha numeric characters separated by dots. The first part is ‘www’ is the indicator of World Wide Web. The second part is generally comprises the name of the enterprise, brand name, trading name or sometime personal names which is known as second level domain name. It is associated with the third part known as top level domain names. This top level domain name identifies the nature or location of the organization. These TLDs are classified into two types- gTLDs or generic Top Level Domain names, which is the indicator of nature of organization and ccTLDs or country code Top Level Domain names, which indicates the location of organizations.

 

DOMAIN NAME MARKET

 

The market of these intangible assets is one of the youngest and fastest growing markets in the globe. The basis of this market is all about searchable keywords that are both generic and descriptive. With online ad spending increasing at a rate of 30 percent a year, owing domain names has become a business in itself. Entrepreneurs can flip them, like Miami Condominiums, or they can sit on them and collect rent. Today, lots of domain name brokers are available world wide selling the domain names through auction sales with their specific selling procedures. Some of the brokers cum sale agents are Domain mart, e-bay, domain tools, etc. Today people are buying lots of domain names as an advertising tool, rather than as a brand name for their website.

The latest big deal of domain name was for the URL ‘seniors.com’ which took place 15 days back at the domain name auction, hosted by Monikers.com in New York. The bidding started at $300,000 and blasted through seven figure mark at $1.8 million.

 

Some of the biggest sales of domain names are described as under following sequence:

Serial no.

Domain Name

Amount

Seller

Buyer

1

Sex.com

$12 million

Garry Kremen

Escom LLC

2.

Porn.com

$9.5 million

Moniker.com

MXN

3.

Business.com

$7.5 million

-

ECompanies

4.

Diamond.com

$7.5 million

Odimo

Ice.com

5.

Beer.com

$7 million

Bill Fisher

Interbrew

 Source- Times of India, dated- July 3, 2007.

 

DOMAIN NAMES AND TRADEMARKS.

 

In a landmark decision of Delhi high court on Yahoo case, Hon’ble Justice Dr. MK Sharma, citing the case of Cardservice International  Inc. Vs McGee, held that ‘the domain name serves the same function as the trademark and is not a mere address and therefore entitled to equal protection as a trademark.’ In the countries all over the world the domain names have been treated as specie of trademark. As far as India is considered, all the disputes relating to domain name is being governed by the Trademark Act, 1999. In India, till date there is not a single court which has treated domain name as a distinct entity from that of the trademark. Various questions arose relating to the jurisdiction of the court to deal with the cases in which domain name has been registered outside India since the trademark Act is restricted to India only. Hon’ble Justice in the Yahoo case itself, citing the case of NR Dongre Vs Whirlpool Corp, made this confusion clear, where WHIRLPOOL, though a dictionary word and not registered in India as a trademark, was entitled to protection as its reputation had traveled transborder to India.

In a recent case of Satyam Infoway Ltd. Vs Sifynet Solutions Pvt. Ltd; the apex court gave the outstanding opinion over the confusion relating to the relation between Domain name and trademark. The principle question involved in this case of appeal is whether internet domain names are subject to the legal norms applicable to other IP such as trademark?

Explaining the principle of domain name, the Hon’ble Supreme Court opined that ‘with the increase in the commercial activity on the internet, a domain name is also used as a business identifier. Therefore Domain name not only serves as an address for internet communication but also identifies the specific internet site. In the commercial field, each Domain name owner provides information/services which are associated with such Domain name. Thus the domain name may pertain to the provision of services within the meaning of section 2(z) of trademark Act’. Apart from these, there are various authorities which talks about Domain names and trademark as the belongings of the same family.

But apart from similarities, the Hon’ble court has also pointed out several dissimilarities between thou but even then it is not relevant to the nature of the right of an owner in connection with the Domain names but is material to the scope of the protection available to the right. The distinction lies in the manner in which the two operate. A trademark is protected by the laws of the country in which it is registered. Consequently, a trademark may have multiple registrations in many countries of the world. On the other hand, since the internet allows for access without any geographical limitation, a Domain name is potentially accessible irrespective of the geographical location of the consumers. The outcome of this potential is that the national laws became inadequate to effectively protect a domain name. This lacuna has been realized by the internet bodies like WIPO and ICANN and thereafter a Uniform Domain Name Dispute Resolution Policy has been framed and is made applicable to all member countries of the world.

 

What are domain name disputes and why they arise?

 

The original role of a Domain name was no doubt to provide an address for computers on the internet. But the internet has developed from a mere means of communication to a mode of carrying on commercial activity. With the increase of commercial activity on the internet, a Domain name is also used as a business identifier. Therefore, the Domain name not only serves as an address for internet communication but also identifies the specific internet site. In the commercial field, each Domain name owner provides information/services which are associated with such Domain name. Moreover as discussed in the previous paragraph relating to the domain name market, it can be analyzed that how professional this domain name system has become. To gather wealth, the illegal activities relating to Domain name took birth which engendered several disputes. The concepts like cyber squatting, typo squatting, Meta tags, etc. got added in the dictionary. 

Cyber squatting

It is the practice of registering the well known brand names, corporate names, celebrities or trademark as the domain name for various purposes. The purpose may be to attract the consumers to use their products and services or to abuse the brand or corporate names of its holder or mostly to get an opportunity to sell those domain names at the price much higher than the amount required for registration. Cyber squatters cause great hardship to the original holder of the reputation. They violate the ‘first come first serve basis’ of the domain name registration and exploit the natural connection between the domain name and the trademark. The first cyber squatting case arose in 1994 and then it multiplied within itself in such a fast rate that it made the international bodies to draft separate policies for it. Courts in countries like India, US etc. found that the offer to sell the domain name to owner of an identical or similar trademark was a trademark infringement.

Illustration: A leading case involving a cyber squatter, Panavision Int. vs. Toppen, where Dennis Toppen was a cyber squatter who registered hundreds of domain names using well known marks of others with the stated intention of selling or licensing them to the true owners. Toppen registered the domain name “panavision.com” and offered to sell it to Panavision Inr for $13,000. The corporation, which owned a federal trademark registration for PANAVISION, sued Toppen for TM infringement and dilution under the Federal TM Dilution Act of 1995. Court held in favour of Panavision.

US have introduced an ‘Anti Cybersquatting Act’ in 1999 in order to punish the cybersquatters.

Typo squatting

It is also similar to cyber squatting but the only difference is that in this there is no direct infringement of the rights but it is done indirectly. Typo squatting, also called as URL hijacking, is a form of cybersquatting which relies on mistakes such as typographical errors made by Internet users when inputting a website address into a web browser. Internet users may accidentally enter an incorrect website address, and they may reach to an alternative address owned by a cybersquatter.

Generally, the victim site of typosquatting will be a frequently visited website. The typosquatter’s URL will usually be any of the four kinds, all similar to the victim site address, for example:

For the intended website “lawspace.com”, a typosquatter may use:

A common misspelling of the intended site—- lawspaces.com A misspelling based on typing errors———– lawspac.com A differently phrased domain name—— spacelaw.com A different top-level domain————————- lawspace.co.in

Sometimes, the typosquatters will use the false addresses to distribute viruses, adware, spyware or other malware. Some are also shock sites. More common are benign domain parking sites, selling advertising to firms based on keywords similar to the misspelled word in the domain.

Once in the typosquatter’s site, the user may also be tricked into thinking that they are in fact in the real site; through the use of copied or similar logos, website layouts or content. Generally, competitors of the victim site do this.

John Zuccarini, who redirected domains targeting children to pornographic websites, infamously used this tactic.

The victim may take the following steps to get away from the problem:

A victim website will usually send a letter to the offender at first, in an attempt to quell the activity. It may also try to purchase the website address from the typosquatter, which could have been the typosquatter’s aim all along. A Company may try and preempt typosquatting by obtaining a number of websites with common misspellings and redirect them to the main, correctly spelled website. For example www.gooogle.com, www.goolge.com, www.gogle.com www.gewgle.com, and others, all redirect to www.google.com.

Microsoft has released new software to help combat this issue. The software is called “Strider Typo-Patrol”. This is a tool that scans and shows third-party domains that is allegedly typosquatted. It also lets parents restrict access to typo-squatting domains that show sexually oriented ads on typos of children’s web sites.

Typosquatting and the law 

In very rare case the people go for the law suits. “Typosquatting” is a meaningless term where the law is concerned. Laws generally are not concerned about registrations of domain names that are similar to other domain names or similar to existing trademarks, unless some other important factor is involved.

Bonafide/ non-competing use.

In many cases it can be observed that though the TM is same but there is no claim of infringement. For example the term ‘prestige’ is used by prestige cookers, prestige meridian, and many others industries and organizations. But as far as the domain name is considered, only one of the organizations can have prestige.com. So this comes under the legitimate claim cases. Even if any of the organization get the domain name ‘prestige.com’ registered, it will not amount to violation of TM. In this type of cases, US court emphasized that mere registration of domain name without any malafide intention i.e. to sell or block the TM holder from using the same etc. is not sufficient to constitute commercial use. It has been held that mere registration or activation of domain name does not constitute commercial use even when the domain name includes the ‘.com’ designation.

 

DOMAIN NAME DISPUTE RESOLUTION

There are many international bodies which are playing very active role in evolving appropriate methods for settlement of disputes relating to domain name and trademark violations. This technological world is united through e-mails, mobile phones, internet, satellites, etc. In today’s world IP forms an integral part of the economy and the IP assets are being globalize and harmonized. So to maintain harmony, the international bodies are mandatorily required to be active regarding the issue.

WTO’s Role- The impetus behind global trade mark law harmonization is the World Trade Organization (WTO) TRIPs (Trade Related Aspects of Intellectual Property) Agreement of 1994, effective January 1 1995. TRIPs stems from the General Agreement on Tariffs and Trade (GATT), which establishes the most favoured nation (non-discrimination) principle. GATT and the WTO view trade mark counterfeiting and intellectual property irregularities as distortions of legitimate trade. Its solution, therefore, involves confronting the “trade-related aspects of intellectual property” to maintain a “level playing field.” Accordingly, the WTO is seeking ways to combat counterfeiting and raise worldwide minimum standards for intellectual property protection.

Art. 16 of WTO TRIPs Agreement extends the protection of well-known marks to “the goods or services which are not similar to those in respect of which a trademark is registered, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered trademark and provided that the interests of the owner of the registered trademark are likely to be damage by such use”.

 

Role of WIPO and ICANN: Though the area of IP disputes is a semi-researched one, efforts are being continuously made in this direction.

Since the cyber space lacks its boundary so there is the requirement of UNCITRAL Model Law to deal with the matters, and arbitration is being viewed as a most appropriate mode of dispute resolution in this arena. WIPO is acting as the major arbitrator provider along with others. WIPO also has its rules of arbitration so as to provide a UNCITRAL Model of Law, though its provisions differ from that of Arbitration and Conciliation Act, 1996. Under this law, sole arbitrator is appointed by each party and the third arbitrator is appointed by the consensus of the two selected arbitrators. The arbitrator selected must be fully skilled in the whole aspects of IP laws. WIPO provides a huge database of 1000 independent WIPO arbitrators and mediators from 70 countries. Apart from mediation and arbitration, WIPO also provides for Expedited arbitration which can be called as advancement over arbitration. It carries out arbitration in very short time frame and at reduced cost.

Recognizing the problems raised by clash between domain name system and trademarks, WIPO Arbitration and Mediation Centre is developing an online internet based system for administering commercial disputes involving intellectual properties.

With the nod towards WIPO, ICAAN has announced plans to use an arbitration panel to resolve disputes over domain name ownership before cases reach the court. WIPO established its own internal arbitration panel to handle such international disputes. National Arbitration Forum as an outsider source also preferred to resolve disputes over cyber squatting.

To control and resolve the disputes WIPO has formulated Uniform Domain Name Dispute Resolution Policy (UDRP), adopted by ICAAN in the year 1999.

 

Uniform Domain Name Dispute Resolution Policy

 

The outcome of consultation between ICANN and WIPO has resulted in the setting up not only of a system of registration of domain names with accredited Registrars but also the evolution of the Uniform Domain Name Dispute Resolution Policy (UDNDR Policy or UDRP) by ICANN.

This policy has been adopted by ICANN on August 26th, 1999 and was approved on October 24th, 1999. . While registration with such Registrars may not have the same consequences as registration under the Trademarks Act, 1999 nevertheless it at least evidences recognized user of a mark. This policy sets out the terms and conditions in connection with disputes between the parties over the registration and use of an Internet domain name registered by a party.

“The UDRP created a streamlined ‘cyber arbitration’ procedure to quickly resolve domain name ownership disputes that involve trademarks”. Though UDRP uses the arbitration as an ADR process but this arbitration process is not same as that of an ordinary arbitration. This has also been called as an Online Dispute Resolution (ODR) by some of the writers. This arbitration is completely carried out online and physical presence is not necessary.

While the system has been both severely criticized and praised, it is clear that the UDRP has been heavily relied upon. As of today around 10,000 decisions, resolving approximately 13,500 domain names have been published.

Meeting the targets that were initially intended to, the UDRP has successfully provided an easy, quick and affordable way of resolving domain name disputes. The procedure, which is entirely online, costs approximately $1000 and is – in the majority of decisions – concluded within 45 days. Concomitantly, the scope of the Policy is limited only to the cases of ‘cybersquatting’ or those of ‘cyber piracy’.

The UDRP is a mandatory procedure, applicable to all registrants of generic top-level domain names (gTLDs). Any trademark owner, who believes that his trademark rights are infringed by a domain name registration can initiate a complaint with one of the arbitrator providers accredited by ICANN: Asian Domain Name Dispute Resolution Centre; The National Arbitration Forum (NAF); or World Intellectual Property Organization (WIPO).

Each provider determines the cost of the complaint based on their supplemental rules, the number of panelists and the number of domain names included in the dispute. Fees range, approximately, from $1,250 for a dispute involving a single panel and a single domain name to $6000 for a dispute involving a three-member panel and over five domain names.

Paragraph 2 of this policy necessitates the warrant from the parties that the registration of domain name will not infringe or violate the rights of any third party and registration is not for unlawful purpose and the domain name will not be used in violation of any applicable laws or regulations. This casts responsibility upon the party to determine whether his domain name registration infringes or violates someone’s rights.

Under paragraph 4, this policy provides for mandatory administrative proceedings for only those disputes where the complainant can prove that:

Domain name is identical and confusingly similar to a TM or service mark in which the complainant has rights. The person has no rights or legitimate interest in respect of the domain name and Where the domain names have been registered and are being used in bad faith.

Circumstances which are considered as bad faith has been defined in paragraph 4(b) of this policy, which comprises of cyber squatting, commercial purpose and disruption of competitor from conducting his business.

The complainant is provided with the choice of opting for a one-member or a three-member panel. Each panel serves as the definitive factor in deciding the case. Moreover, if the complainant chooses a one-member panel, the domain name holder (the respondent) has the choice of disregarding his decision and opting, instead, to have the dispute heard by a three-member panel.

The respondent has a twenty-day deadline to respond to the complaint as raised by the trademark owner and submit a written response to the Provider. In case the respondent fails to submit a timely response, the panel will almost certainly decide the action based solely on the complainant’s arguments.

Awards

Unlike winning a domain name dispute in court, where the prevailing party may be the beneficiary of a monetary award, the only award, which the UDRP is able to offer, is the cancellation or transfer of the domain name and thus the change of the domain name registration only when the requirement of paragraph 3 of the policy is fulfilled. In such a case, only the complainant, the party that has the power to initiate a UDRP action, receives an award upon victory. If the domain name holder succeeds, he receives nothing and the domain name registration remains in its initial status. There is no provision of costs and damages payable to the winning party by the loosing party.

 

The non-binding nature of UDRP decisions

 

Paragraph 4(k) of the policy is very clear in describing the non binding nature of the decisions.

Unquestionably, the most significant difference between the UDRP and typical arbitration is that the UDRP proceedings are subject to de novo review in court. By contrast no arbitral procedure is subject to de novo review, since, unless exceptional circumstances require it, arbitration calls for the finality of awards. This very point was well explained in the Parisi v. Netlearning, Inc. case.

 

In that case, Dan Parisi registered the domain name “netlearning.com” with Network Solutions Inc. (NSI), an ICANN accredited registrar. Netlearning, Inc. initiated a UDRP proceeding against Parisi challenging this registration. The three-member panel that was appointed to determine the dispute voted two-to-one in favour of Netlearning. The three-member panel directed NSI to transfer the registration for “Netlearning.com” to Netlearning. Parisi filed a declaratory judgment action seeking a declaration that his registration and use of the disputed domain name was lawful. Netlearning moved to dismiss on the grounds that Parisi’s motion was in effect a motion to vacate an arbitration award and that Parisi failed to demonstrate cognizable grounds for such an action under the Federal Arbitration Act (FAA) and the New York Convention. The court, per Judge Brinkema, denied Netlearning’s motion to dismiss.

 

Even if the panel decides that the domain name should be transferred or cancelled, ICANN will provide the respondent the discretion to submit documentation of his commencement of formal litigation against the complainant within ten days. If the domain name holder meets this requirement successfully, ICANN will stay the decision of the UDRP panel pending court resolution. For ICANN not to enforce the initial decision and follow the court ruling it needs to receive evidence that: 

 

The parties resolved the dispute; The lawsuit has been dismissed; or The court has found that the domain name holder no longer has the right to use the domain name.

 

The fact that the Uniform Domain Name Dispute Resolution is non-binding may be related to the fact that the official text of the UDRP refers not to “arbitration”, but to a “mandatory administrative proceeding”, though without further clarifications. Even though this may be nothing more but a semantic difference, most possibly the difference is of more significance. The idea is that the UDRP drafters understanding that their process is not conventional by what ordinarily is defined as “arbitration” decided to clothe it under the term “mandatory administrative proceeding”.

Advantages

Alternative dispute resolution process – discovery procedures, trials or juries. Many domain name registries in the United States and other countries participate in the policy In many cases it provides quicker results – 60 to 120 days from filing to decision, with the panel having14 days to render a decision once it is appointed. It is typically less expensive than filing a lawsuit . It is a more simplified process There is no jurisdiction requirement – everyone who registers a domain name in the appropriate gTLD or ccTLD is subject to arbitration Panels usually consist of lawyers and judges knowledgeable in the field

 Disadvantages

There is no right to a series of replies or responses unless the information is specifically requested by the arbitration panel. The registrant can continue to use the domain name during the pendency of the UDRP proceeding. The only remedy available to the complainant is transfer or cancellation of the domain name – there is no right to damages, injunctions or attorneys’ fees. The only remedy available to a respondent in the event of loss is bringing a new trial in court – no appeal is available. Panels are given a wide discretion concerning admissibility of evidence.

Conclusion

By seeing all these developments within a small time frame, an analogy can be drawn about the development of the intellectuals in this world. This systematic procedure has resulted in the settlement of thousands of disputes in a quick time. This shows a positive sign towards the development of this branch. But even though there are certain areas that are still remain vague and are the root of confusion. Generally most of the confusion arises with respect to the conflict between the UDRP arbitration panel’s decision and the decision of the domestic courts in the common matters. The courts are still in dilemma on the situation when both the judicial body is of contrary view. The main reason behind this confusion is the one-man rule over the cyber world. So in this situation, the necessity required is to bifurcate of the power of adjudication. Process is currently going on in India and china to evolve their own root domain name so as to have a hold over the disputes and making the policies relating to domain name disputes in conformity with domestic laws. But this process is getting some opposition from superpowers. Thus an amicable settlement of this issue is much required to bring more harmonization in the domain name dispute resolution process.

 



By: Pankaj Kumar

About the Author:

legal assistance

Businesses and workplaces can sometimes go months or years without staff conflict, other times unfortunate circumstances and grievances can seem to plague organisations over a concentrated period of time. In both cases, as soon as management or employers become aware of such problems they must search for ways to resolve them before escalation.

In many cases problems arise when employers have been negligent in providing an adequate process for complaints or problems in the workplace, other times staff dissatisfaction has reached critical levels for personal reasons. Either way, disruption such as this not only leads to unfortunate loss of productivity but also causes a drop in morale of the staff, and this can affect every area of the organisation.

As soon as an area of conflict is identified, managers and supervisors need to consider what to do. Intervening in every minor disagreement can be counterproductive and they may at first take a watching brief. This early warning system often allows small problems to be halted before they develop into something worse. However, there are certain times when conflicts are not easily resolved by those involved or their managers.

For example, workplace grievances can range from suspected discrimination to personal conflicts and both parties may blame each other and be unable to find a solution.. This is when an impartial mediator, can step in to help the two parties come to an agreement. It is necessary to turn to a trained internal workplace mediator or a mediator from outside the company. An internal mediator has the advantage of knowing the organisation and its policies and procedures which can be very useful as long as they are not involved in the conflict and are removed enough from the situation not to be seen as biased towards one complainent over the other.

Mediation is a service that aims to restore balance and a sense of fairness to all parties involved in workplace grievances. It is not partial to any complainent. The mediator will not impose a solution but helps those involved in the conflict to come to a solution that they can both agree to.. Mediators also offer a nonjudgmental ear, instead they provide a platform for everyone involved to talk honestly about the dispute and mediators will ask questions to help all involved understand the issues that lie at the root of the conflict.

Mediation training ensures that mediators are well equipped to assist parties to clarify the options that are open to them and the greater understanding of the problems at hand which often means that a harmonious agreement between all parties can be reached. While agreements reached through mediation may not be legally binding when it comes to potential employment tribunals, the nature of the service means that when a positive outcome is reached the parties involved tend to respect and appreciate it and the help they have received.



By: Adam Singleton

About the Author:

business mediation