CS(OS) 1745/2009 and I.A. No. 11943/2009 and 17485/2010. Case: Mr. Arun Jaitley Vs Network Solutions Private Limited and Ors.. High Court of Delhi (India)

Judgment:

Manmohan Singh, J.

1. The Plaintiff Mr. Arun Jaitley has filed the present suit for permanent injunction restraining the Defendants from misuse and immediate transfer of domain name WWW. ARUNJAITLEY.COM.

2. The name of Defendant No. 1 Network Solutions Private Limited was deleted vide order dated 15.04.2009. Amended memo of parties is already filed on record and Defendant Nos. 2 to 4 have been numbered as Defendant Nos. 1, 2 and 3 respectively. Mr C.M. Lall is appearing on behalf of Defendant Nos. 1 and 2 as per amended memo of parties. The Defendant No. 3 namely Portfolio Brains LLC was proceeded ex-parte vide order dated 06.01.2010.

3. When the suit along with interim application was listed, the court passed the interim order in favour of the Plaintiff. The operative portion of the interim order passed is as under:

   It is directed that till the next date of hearing the Defendant No. 3, Portfolio Brains LLC or its principal officers, servants, agents or anyone who may be acting for and for and on its behalf, shall not in any manner advertise the domain name arunjaitley.com, use the said domain name for auction purposes or for any other purpose. Defendant No. 3 is restrained from transferring, alienating or offering for sale the said domain name "arunjaitley.com" to any third party and from creating any third party interest in the said domain name "arunjaitley.com?. Defendant No. 3 is directed to maintain status quo in relation to the said domain name. This is subject to the Plaintiff complying with the requirements of Order XXXIX Rule 3 Code of Civil Procedure within one week.

4. The matter was listed before the court on 25.04.2011 for consideration of I.A. No. 11943/2009 (Order 39 Rule 1&2 read with Section 151 Code of Civil Procedure) and I.A. No. 17485/2010 (Order 1 Rule 1 CPC). Both the parties have given their consent if the main suit along with these applications be also decided.

5. Before considering these pending applications, I feel it is necessary to refer the facts which reads as under:

   (i) The Plaintiff is a prominent leader of the Bhartiya Janata Party which is currently the largest opposition party in India and is the leader of Opposition in the Rajya Sabha. The Plaintiff has been a Member of Parliament for the last ten years. He was a prominent leader of a movement against corruption launched in the year 1973 by Late Shri Jai Prakash Narayan. He was the Convenor of the National Committee for Students and Youth Organization appointed by Late Shri Jai Prakash Narayan.

   (ii) The Plaintiff was a delegate on behalf of the Government of India to the United Nations General Assembly session in June, 1998 where the Declaration on laws relating to Drugs and Money Laundering was approved. The Plaintiff was appointed as the Minister of State for Information and Broadcasting (Independent Charge) in 1999. In the year 2000, the Plaintiff was also appointed as the Minister of State for Disinvestment to give effect to the policy of disinvestments under the World Trade Organization (WTO) regime and was also given the additional charge of the Ministry of Law, Justice and Company Affairs and was elevated to rank of a Cabinet Minister on 7th November, 2000 with the Law, Justice & Company Affairs under his charge and also given the charge of the Ministry of Shipping.

   (iii) Thereafter the Plaintiff demitted the office to join the Bhartiya Janta Party as its Secretary General and also as its national spokesman in the year 2001. In the year 2003, the Plaintiff again became the Union Cabinet Minister as the Minister of Commerce & Industry and Law & Justice before rejoining the Bhartiya Janata Party as its General Secretary.

   (iv) The name "ARUN JAITLEY", being the personal name of the Plaintiff, immediately gets associated with the Plaintiff and no one else. The Plaintiff's name carries enormous goodwill and reputation and is exclusively associated with the Plaintiff. the Plaintiff is a household name not only in India but also globally for the last more than 35 years. In the public perception, whenever the name of Mr. Arun Jaitley is mentioned, it is immediately identified and related with him and no one else.

6. The Plaintiff wanted to book the domain www.arunjaitley.com. Since it was not becoming possible to register through the website of the Defendants, a letter dated 16.07.2009 was addressed to the Defendant No. 2 namely Network Solutions, LLC (previously Defendant No. 3) through email by the counsel for the Plaintiff. That on 17th July, 2009 a reply was received that the said domain was already taken. It was also asked the Plaintiff to make an offer for purchasing the said domain through its Certified Offer Service. When the Plaintiff visited the website of the Defendant No. 3 he found that the said domain was "Pending Deletion" as it had not been renewed by the previous owner.

7. The counsel for Plaintiff again wrote an email dated 23rd July, 2009 to the Defendants wherein, the Plaintiff requested the Defendants to transfer the said domain in the Plaintiff's name as the said domain was pending deletion and had not been renewed by any person.

8. The Defendant No. 2 vide an email dated 25th July, 2009 reverted back by stating that the matter was escalated to the Executive Department for review and that someone would be contacting them. Later on an email dated 27th July 2009 was received by the counsel for the Plaintiff from Mr. Jeffrey Visgaitis, Executive Support of the Defendant No. 2, wherein the Plaintiff was asked to either wait for the domain to be deleted for non-payment or make a certified offer for purchasing the domain.

9. The domain www.arunjaitley.com according to the WHOIS report had expired on 12th June, 2009. Further according to the Domain Deletion Policy of the Defendants, the domain ought to have been deleted after the expiration of 35 days as per the Policy. It is argued that even after the expiration of the said 35 days, the domain continued to be under the Pending Deletion status and the same was not transferred as referred by the Plaintiff. The domain name www.arunjaitley.com being a Global Top Level Domain name, the Defendants are bound by the Uniform Dispute Resolution Policy (UDRP). The validity and binding nature of UDRP has been discussed and affirmed by the Hon'ble Supreme Court in Satyam Info way Ltd. v. Sifynet Solutions Pvt. Ltd. reported as (2004) 6 SCC 145. Further the Defendants are also bound by the Domain Deletion Policy if ICANN wherein any expired domain is bound to be deleted within 45 days. Domain Deletion Policy of ICANN is also filed by the Plaintiff and the same is available at page 23 of the documents.

10. The contention of the Plaintiff is that the Defendants with mala fide intentions did not delete the said domain and not transferred the same to the Plaintiff as they had asked the Plaintiff to purchase the domain through their Certified Offer Service. The Certified Offer Service of the Defendants is nothing but an auction service wherein the person who bids the maximum amount would be entitled for the domain name. The cost for booking a domain for one year is $35. However, the minimum bid amount for Certified Offer Service is over $100. Further there is no guarantee that the domain name would be transferred to the bidder. Further the price assessment to procure the domain name www.arunjaitley.com according to the website of the Defendants is ranging from $11,725 to $14,475. Certified offer for the domain www.arunjaitley.com of the Defendant No. 1 and 2 is available on record. Thus according to the counsel it is clear that the intention of the Defendants was to have a monetary gain by collecting sums of money for the domain name.

11. It is informed by the counsel that the Defendant No. 2 thereafter transferred the said domain to the Defendant No. 3 which is an auction site for domain names. The Defendant No. 3 company acquires domains and auctions them to the general public. Thus it is obvious that the Defendants are colluding with each other in order to make money on the domain name and not permitting the bona fide use of the same by the Plaintiff as the Defendant Nos. 1 and 2, in spite of having knowledge transferred the domain name to the Defendant No. 3 for its commercial gains which is a mere auction site. It is further submitted that even on 27th August, 2009, the domain was shown as "PENDING DELETE". But it was thereafter transferred on the same day i.e. 27th August, 2009 to the Defendant No. 3 after 85 days. By an interim order passed on 15.09.2009, the court restrained Defendant No. 3 from transferring, alienating or offering for sale the said domain name www.arunjaitley.com to any third party and from creating any third party interest in the said domain name www.arunjaitley.com. The Defendant No. 3 was also directed to maintain status quo in relation to the domain name.

12. It is alleged that the Registrars of the domain names including Network Solutions, VeriSign, Portfolia Brains LLC, etc. are all operating under the ICANN and all these Registrars are in collusion with each other and it is being done deliberately in order to defeat rights of bona fide holders in a domain name.

13. Further the transfer was done without the notice or knowledge of the Plaintiff who was expecting a positive reply in view of the letter dated 27th July, 2009 and thus the transfer is made to Portfolio Brains LLC the Defendant No. 3 contrary to their own rules and in order to violate the orders of the court and keep the rightful person in dark, though all these Registrars are bound under the UDRP Policy. Violation of the UDRP Policy in fact is to be construed very strictly by the ICANN.

14. The right to file the written statement on behalf of the Defendant Nos. 1 and 2 was closed vide order dated 23.04.2010. No written statement was filed by Defendant No. 3. Mr. Lall appearing on behalf of Defendant Nos. 1 and 2, on instructions, made the statement before the court on...