Papers by Aakanksha Kumar
With the internet today transcending all national boundaries, the protection of IP and penalising... more With the internet today transcending all national boundaries, the protection of IP and penalising its infringement over the 'world-wide-web' has become even more difficult, given the territorial nature of the grant of the intellectual property right. Moreover, while hosting, routing, and linking to these 'infringing material harbouring'-sites or services, internet service providers (ISPs) themselves become vulnerable to charges of copyright infringement. The law in the US has since long, been very strict against ISPs for contributory/ secondary copyright infringement. However, India has only recently enacted a legal provision dealing with ISPs. The lack of it has been one of the main reasons for delay in the Indo-US free trade agreement. Although, India has not ratified the WIPO internet treaties, and hence not obligated to have an enforceable ISP liability law, India's 2012 Copyright Amendment Act read together with Sections 79 and 81 of the Information Technology Act and the May 2011 Guidelines for Internet Intermediaries constitute comprehensive legal provisions to fix ISP liability. This paper seeks to highlight the salient features of the ISP liability laws in India and the US and discuss how, even with the new law, differences still remain, leading to continued trade-relation barriers.
NTUT J. of Intell. Prop. L. & Mgmt 29, 2022
In the recent past, there have been several cases of ‘cyber-squatting’ of celebrity names by Indi... more In the recent past, there have been several cases of ‘cyber-squatting’ of celebrity names by Indian
domain name holders. Almost decade ago, former US President and entrepreneur Donald Trump
sought damages to the tune of USD 400000 against a Brooklyn-based man for having acquired and
registered domain names ‘trumpindia.com’ and ‘trumpmumbai.com’ after it was announced in 2007
that the real estate mogul had plans to set up Trump-hotels in India in Delhi, Mumbai and Bangalore.
Even before that, Hollywood actress and Academy Award winner, Julia Roberts faced a slew of cybersquatters
from India, having attempted to acquire domain name registration of her own, very
identifiable name. More recently, Mark Zuckerberg paid a sum of USD 700 to purchase the domain
“maxchanzuckerberg.com” from a boy in Kochi, who proudly admitted to having registered not one,
but more such names, even “hashtagging” his Facebook status update with “#cyber_squatting!”.
Most cases of domain name cyber-squatting are resolved via the INDRP dispute resolution rules,
an alternative dispute resolution mechanism for ‘.in’ domain names in India; or at the WIPO
Arbitration and Mediation Centre, following the UDRP Rules. However, this paper seeks to address
the question of right of publicity of the celebrities whose names have been misappropriated by the
cyber-squatters. While remedies against unlawful taking of domain names may be claimed under
Trademark Law or the common law passing off doctrine, more often than not, these cases also raise
concerns of right of publicity. For example, in the case of the “tatacyrusmistry.com” domain name,
the WIPO Tribunal did, albeit in passing, bring up the rights of publicity of the plaintiff, in furtherance
of observations of the Delhi High Court (‘Delhi HC’). The right of publicity, most simply put, protects
any individual’s marketable image or persona. While the right has always been envisaged as an
economic right in India, similar to, however distinct from the passing -off remedy, Justice Kaul, in his
separate opinion in the Supreme Court’s Puttaswamy decision, (that clarified the position of the right
to privacy as a fundamental right guaranteed under Part III of the Constitution), went a step further.
He elevated the right of publicity, otherwise having been previously enunciated only as a common law
right,1 to a being a facet of the fundamental guarantee of privacy.The conception of fundamental rights has always carried with itself its inherent inalienability, as
opposed to the conception of property rights, which carries with itself a distinct characteristic of
transferability. Thus, while most property disputes are arbitrable, including private disputes in relation
to intellectual property, 2 questions of fundamental rights are NOT open to adjudication by private
methods, as they relate to rights in rem and not rights in personam.3
This paper shall thus address the nature of the right of publicity, and whether Justice Kaul made
an inadvertent error in equating an economic in personam interest to a fundamental right, an in rem
interest, that is otherwise non-arbitrable, in light of the celebrity domain name arbitration cases. In
reaching this conclusion, the paper shall look at both the primary rules and case rulings under the
WIPO-UDRP, the auDRP and the INDRP as well as court decisions in India on personal name
trademarks and passing off, alongside other case studies of actual practice and secondary materials
such as other scholarly works on personality rights and personal domain name arbitration; thereby
seeking to propose a methodology of how and why private arbitral tribunals can address right of
publicity claims, as they continue to do.
With the internet today transcending all national boundaries, the protection of IP and penalising... more With the internet today transcending all national boundaries, the protection of IP and penalising its infringement over the ‘world-wide-web’ has become even more difficult, given the territorial nature of the grant of the intellectual property right. Moreover, while hosting, routing, and linking to these ‘infringing material harbouring’ sites or services, internet service providers (ISPs) themselves become vulnerable to charges of copyright infringement. The law in the US has since long, been very strict against ISPs for contributory/ secondary copyright infringement. However, India has only recently enacted a legal provision dealing with ISPs. The lack of it has been one of the main reasons for delay in the Indo-US free trade agreement. Although, India has not ratified the WIPO internet treaties, and hence not obligated to have an enforceable ISP liability law, India’s 2012 Copyright Amendment Act read together with Sections 79 and 81 of the Information Technology Act and the May 2...
Indian Journal of Arbitration Law, Volume 3, Issue 2, Pgs. 6 - 13
December 2014
(Editorial)
CRMD Business Times, August, 2014 [NLU Jodhpur Newsletter of the Centre of Risk Management and D... more CRMD Business Times, August, 2014 [NLU Jodhpur Newsletter of the Centre of Risk Management and Derivatives]
International Arbitration Law Review 2014 [Int. A.L.R. 2014, 17(3), 76-85]
With the internet today transcending all national boundaries, the protection of IP and penalising... more With the internet today transcending all national boundaries, the protection of IP and penalising its infringement over the 'world-wide-web' has become even more difficult, given the territorial nature of the grant of the intellectual property right. Moreover, while hosting, routing, and linking to these 'infringing material harbouring' -sites or services, internet service providers (ISPs) themselves become vulnerable to charges of copyright infringement. The law in the US has since long, been very strict against ISPs for contributory/ secondary copyright infringement. However, India has only recently enacted a legal provision dealing with ISPs. The lack of it has been one of the main reasons for delay in the Indo-US free trade agreement. Although, India has not ratified the WIPO internet treaties, and hence not obligated to have an enforceable ISP liability law, India's Intermediaries constitute comprehensive legal provisions to fix ISP liability. This paper seeks to highlight the salient features of the ISP liability laws in India and the US and discuss how, even with the new law, differences still remain, leading to continued trade-relation barriers.
In a historic ruling on April 15, 2014, the apex court of India, in the case of NALSA v UoI, (NAL... more In a historic ruling on April 15, 2014, the apex court of India, in the case of NALSA v UoI, (NALSA, 2014) declared that Hijras, Eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights and that these persons have the right to decide their self-identified gender. Interestingly, this ruling came in the wake of another January 2014 ruling, wherein another SC bench had "turned the clock back" on homosexuals by withdrawing the legal protection granted to them by the Delhi High Court in 2009. The judgment does give some brilliant and original jurisprudential interpretations of the intentions of the framers of our Constitution with respect to sex stereotyping and gender self-identification while reaching their conclusions. This paper seeks to analyse the Constitutional bases for recognition of the rights of this community to gender selfidentification as well as make an attempt to highlight the importance of the aforesaid ruling for Indian law making and social justice aims.
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Papers by Aakanksha Kumar
domain name holders. Almost decade ago, former US President and entrepreneur Donald Trump
sought damages to the tune of USD 400000 against a Brooklyn-based man for having acquired and
registered domain names ‘trumpindia.com’ and ‘trumpmumbai.com’ after it was announced in 2007
that the real estate mogul had plans to set up Trump-hotels in India in Delhi, Mumbai and Bangalore.
Even before that, Hollywood actress and Academy Award winner, Julia Roberts faced a slew of cybersquatters
from India, having attempted to acquire domain name registration of her own, very
identifiable name. More recently, Mark Zuckerberg paid a sum of USD 700 to purchase the domain
“maxchanzuckerberg.com” from a boy in Kochi, who proudly admitted to having registered not one,
but more such names, even “hashtagging” his Facebook status update with “#cyber_squatting!”.
Most cases of domain name cyber-squatting are resolved via the INDRP dispute resolution rules,
an alternative dispute resolution mechanism for ‘.in’ domain names in India; or at the WIPO
Arbitration and Mediation Centre, following the UDRP Rules. However, this paper seeks to address
the question of right of publicity of the celebrities whose names have been misappropriated by the
cyber-squatters. While remedies against unlawful taking of domain names may be claimed under
Trademark Law or the common law passing off doctrine, more often than not, these cases also raise
concerns of right of publicity. For example, in the case of the “tatacyrusmistry.com” domain name,
the WIPO Tribunal did, albeit in passing, bring up the rights of publicity of the plaintiff, in furtherance
of observations of the Delhi High Court (‘Delhi HC’). The right of publicity, most simply put, protects
any individual’s marketable image or persona. While the right has always been envisaged as an
economic right in India, similar to, however distinct from the passing -off remedy, Justice Kaul, in his
separate opinion in the Supreme Court’s Puttaswamy decision, (that clarified the position of the right
to privacy as a fundamental right guaranteed under Part III of the Constitution), went a step further.
He elevated the right of publicity, otherwise having been previously enunciated only as a common law
right,1 to a being a facet of the fundamental guarantee of privacy.The conception of fundamental rights has always carried with itself its inherent inalienability, as
opposed to the conception of property rights, which carries with itself a distinct characteristic of
transferability. Thus, while most property disputes are arbitrable, including private disputes in relation
to intellectual property, 2 questions of fundamental rights are NOT open to adjudication by private
methods, as they relate to rights in rem and not rights in personam.3
This paper shall thus address the nature of the right of publicity, and whether Justice Kaul made
an inadvertent error in equating an economic in personam interest to a fundamental right, an in rem
interest, that is otherwise non-arbitrable, in light of the celebrity domain name arbitration cases. In
reaching this conclusion, the paper shall look at both the primary rules and case rulings under the
WIPO-UDRP, the auDRP and the INDRP as well as court decisions in India on personal name
trademarks and passing off, alongside other case studies of actual practice and secondary materials
such as other scholarly works on personality rights and personal domain name arbitration; thereby
seeking to propose a methodology of how and why private arbitral tribunals can address right of
publicity claims, as they continue to do.
domain name holders. Almost decade ago, former US President and entrepreneur Donald Trump
sought damages to the tune of USD 400000 against a Brooklyn-based man for having acquired and
registered domain names ‘trumpindia.com’ and ‘trumpmumbai.com’ after it was announced in 2007
that the real estate mogul had plans to set up Trump-hotels in India in Delhi, Mumbai and Bangalore.
Even before that, Hollywood actress and Academy Award winner, Julia Roberts faced a slew of cybersquatters
from India, having attempted to acquire domain name registration of her own, very
identifiable name. More recently, Mark Zuckerberg paid a sum of USD 700 to purchase the domain
“maxchanzuckerberg.com” from a boy in Kochi, who proudly admitted to having registered not one,
but more such names, even “hashtagging” his Facebook status update with “#cyber_squatting!”.
Most cases of domain name cyber-squatting are resolved via the INDRP dispute resolution rules,
an alternative dispute resolution mechanism for ‘.in’ domain names in India; or at the WIPO
Arbitration and Mediation Centre, following the UDRP Rules. However, this paper seeks to address
the question of right of publicity of the celebrities whose names have been misappropriated by the
cyber-squatters. While remedies against unlawful taking of domain names may be claimed under
Trademark Law or the common law passing off doctrine, more often than not, these cases also raise
concerns of right of publicity. For example, in the case of the “tatacyrusmistry.com” domain name,
the WIPO Tribunal did, albeit in passing, bring up the rights of publicity of the plaintiff, in furtherance
of observations of the Delhi High Court (‘Delhi HC’). The right of publicity, most simply put, protects
any individual’s marketable image or persona. While the right has always been envisaged as an
economic right in India, similar to, however distinct from the passing -off remedy, Justice Kaul, in his
separate opinion in the Supreme Court’s Puttaswamy decision, (that clarified the position of the right
to privacy as a fundamental right guaranteed under Part III of the Constitution), went a step further.
He elevated the right of publicity, otherwise having been previously enunciated only as a common law
right,1 to a being a facet of the fundamental guarantee of privacy.The conception of fundamental rights has always carried with itself its inherent inalienability, as
opposed to the conception of property rights, which carries with itself a distinct characteristic of
transferability. Thus, while most property disputes are arbitrable, including private disputes in relation
to intellectual property, 2 questions of fundamental rights are NOT open to adjudication by private
methods, as they relate to rights in rem and not rights in personam.3
This paper shall thus address the nature of the right of publicity, and whether Justice Kaul made
an inadvertent error in equating an economic in personam interest to a fundamental right, an in rem
interest, that is otherwise non-arbitrable, in light of the celebrity domain name arbitration cases. In
reaching this conclusion, the paper shall look at both the primary rules and case rulings under the
WIPO-UDRP, the auDRP and the INDRP as well as court decisions in India on personal name
trademarks and passing off, alongside other case studies of actual practice and secondary materials
such as other scholarly works on personality rights and personal domain name arbitration; thereby
seeking to propose a methodology of how and why private arbitral tribunals can address right of
publicity claims, as they continue to do.