Hon’ble Delhi High Court has recently in the matter of Lens. Com, Inc. vs Ju J Friend International reviewed the Para 10 (remedy) of the INDRP, wherein it was claimed by the counsel for the Complainant that in terms of INDRP, the Arbitrator has no power to order confiscation of the domain name; the power of the Arbitrator is limited only to order the cancellation of the registrant’s domain name or to transfer the registrant’s domain name registration to the complainant.
In the matter of LENS.IN, the domain name LENS.IN was ordered to be confiscated on the grounds that the Complainant cannot claim right over the generic term LENS, whereas the Respondent had stated they are unrelated to the domain name and dis-owned ownership of the domain name. Therefore, the Complainant Company Lens.com went under appeal before the Delhi High Court and it was held by Hon’ble Delhi High Court that:
Para 10 of the INDRP gives the remedies that are available to the complainant pursuant to any proceeding before an Arbitrator. The same is quoted herein below :-
10) Remedies: The remedies available to a Complainant pursuant to any proceeding before an Arbitrator shall be limited to requiring the cancellation of the Registrant’s domain name or the transfer of the Registrant’s domain name registration to the Complainant. Costs as may be deemed fit may also be awarded by the Arbitrator.
A reading of the above would show that the Arbitrator has the power to order cancellation of the registrant’s domain name or the transfer of registrant’s domain name registration to the complainant apart from awarding costs.
This judgment in Stephen Koeing vs. Arbitrator Nixi 2015 SCC Online Del 13237 has been upheld, wherein the domain name INTERNET.IN was in question. It was held that the Arbitrator, while ordering confiscation of the domain name, had transgressed para 10 of the INDRP. In the circumstance, the direction of the Sole Arbitrator to the registry to confiscate the domain name ‘www.lens.in’ cannot be sustained.
Similarly, the confiscation of the domain name LENS.IN has been set aside by this Court by the present order, it would always be open to the petitioner to claim registration to the domain name ‘lens.in’ in accordance with the Rules of NIXI. The impugned order is set aside only to the extent that it orders that the domain name ‘www.lens.in’ be confiscated by the registry and the same may be kept with it. There shall be no order as to costs.”
Interestingly, it was the only such order after the initial period of INDRP in 2006, when the domain names Internet.in, Business.in and ISP.in were ordered to be confiscated !