Domain Name Registrars Are "Intermediaries" Under Information Technology Act: Delhi High Court

The Delhi High Court has held that the Domain Name Registrars are "intermediaries", within the meaning of sec. 2(1)(w) of the Information Technology Act, 2000. Justice C Hari Shankar was dealing with a suit filed by Snapdeal Private Limited regarding "SNAPDEAL trade mark". Defendants 1 to 32 were Domain Name Registrars who provide domain names for parties who may seek to register their respective websites under such domain names. Defendant 33 was the Department of Telecommunications and Defendant 34 is the National Internet Exchange of India (NIXI).The plaint alleged that various third parties, with whom the plaintiff had no connection or association whatsoever, were registering domain names which include the "SNAPDEAL" thread. These domain names, it was alleged, were infringing in nature, as the plaintiff was the registered proprietor of the "SNAPDEAL" trade mark. It was also alleged that such third parties were, through the websites operating under the said domain names, carrying out illegal activities, such as providing lucky draws etc. and were also, in certain cases, posing as customer care centres for the plaintiff's products.The Court therefore framed the following issues:- Are the DNRs "intermediaries" within the meaning of Section 2(1)(w) of the IT- (Is the providing of brokerage services, by the DNRs, violative of the IT Act or otherwise illegal?- Does providing of domain names containing 'SNAPDEAL' violate the trademark rights of the plaintiff?- Is providing of privacy services, by the DNRs, illegal?- Are the DNRs entitled to "safe harbour" under Section 79 of the IT Act?- Is it not technologically feasible for the DNRs to ensure that aspiring registrants, who logged onto the websites of the DNRs, are not provided options which contain a particular thread or word?- Would grant of the reliefs sought in the plaint required the DNRs to adjudicate regarding the infringing nature of any available domain name?- How meritorious is the DNRs' contention that no substantial relief would ensue in favour of the plaintiff, even were the prayer is in the plaint to be granted, as there are several hundreds of DNRs from whom aspiring registrants could obtain domain names containing the 'SNAPDEAL' word/thread?- Would grant of the reliefs sought in the plaint affects the rights of the DNRs or of aspiring registrants?- Is the plaint bad for non-joinder of necessary parties?- Is the plaintiff is entitled to the relief of a restraint, against the DNRs, from providing, in future, to any aspiring registrant, any domain name containing 'SNAPDEAL' as a quia timet relief?On the first issue, the Court rejected the contention of the DNRs that they are not "intermediaries" within the meaning of sec. 2(1)(w) of the IT Act. Going through various definitions of the Act, the Court observed that domain names would qualify as "electronic records", as defined in sec. 2(1)(t), especially as the domain names which are provided by the DNRs, according to them, are sourced from a common Domain Name Registry. "As being persons who provide service with respect to the domain names, the DNRs would be "intermediaries" within the meaning of Section 2(1)(w)," the Court held. On the second and third issue, the Court said that neither does the IT Act, nor do the 2021 IT Rules, delimit or delineate the functions which an intermediary can perform. "The IT Act is completely silent in this regard, merely restricting itself, in Section 79, to certain circumstances in which an intermediary would, and would not, be entitled to the protection of the provision. The IT Rules merely contain provisions relating to observation of due diligence by intermediaries and do not restrict the activities in which intermediaries may indulge. I am in agreement, therefore, with learned Counsel for the DNRs that there is no statutory proscription against their providing brokerage services. As the discussion hereinafter would reveal, however, this would impact the entitlement, of the DNRs, to the benefit of Section 79 of the IT Act. That said, there is, I repeat, no bar against the DNRs providing brokerage services, even if the brokerage charges, charged by the DNRs for such services, are in addition to, and over and above, the commission which they charge for providing domain names to an aspiring registrant," the Court observed. Therefore, the Court opined that merely on account of providing of brokerage services, it cannot be said that the DNRs infringed the intellectual property rights of the plaintiff in any manner. It added that as the alternative domain name provided by the DNRs did not belong to the plaintiff, the DNRs were not required to obtain any permission from the plaintiff before providing such alternative domain names."The DNRs do not, in any manner, profess any association with the plaintiff, in making such alternatives available. Rather, it is the case of the DNRs – which the plaintiff has not been able to successfully traverse – that the alternative...

Domain Name Registrars Are "Intermediaries" Under Information Technology Act: Delhi High Court

Nupur Thapliyal

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