Apr 12, 2019

Cyber –Squatting In Nigeria | Madu Blessing


The world today is indeed a global village.  It has revolved around technology and the internet. With the advent of internet, individuals can establish various businesses and register such business online and in doing so, they maintain a personal or official domain name. 


A domain name is a unique name that an individual or organization chooses to identify its website. Every website has a domain name which comprises of a registered internet protocol (IP) address. An example is www.legalnaija.com. Since customers and clients try to find businesses online, some individuals register this domain names identical to the company’s or individual trademarks and then attempts to sell to its owner. These individuals are known as cyber-squatters. Cyber-squatters have robbed businesses of their fortune and it is a threat to legitimate business owners in this digital era. 


 Cyber- squatting, also known as domain squatting is the act of registering or using a domain name in bad faith. The person who registers this domain name has no affiliation with such name. It is usually done with the intention of making profits by selling to its owners.

Anyone can be a victim of cyber- squatting. The usual targets are however, businesses, Politicians and celebrities. Some famous cases of cyber-squatting are Linda Ikeji, Donald Trump, Konga, eBay and so on.

Cyber-squatting is a major issue in Information and Comunications Technology and its far reaching implications has brought about a need to regulate this problem. In 2015, the Cybercrimes (Prevention, Prohibition, e.t.c) Act brought about a framework that governed various aspects of online activities including cyber-squatting.

Cyber-squatting was defined in Section 58 as the acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation and deprive others from registering same if such domain name is;

·        Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration

·        identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and

·        acquired without right or with intellectual property interests in it.

An example usually occurs where, C buys cowbell.com, when the company has not yet created a website and C thereafter sells to cowbell at a later date for profit. Another example is where, my name is Madu Blessing. I am a prolific writer and my books are best sellers. A, registers a domain with the name www.madublessing.com. If A’s reason for doing so is to;

·        profit financially

·        mislead the public

·        destroy my reputation as a writer or individual

·        deprive me from registering same

Then, A can be regarded as a cyber-squatter.

Section 25(1) of the Act stipulated the punishment for cyber-squatters and it provides thus:

“A person who, intentionally takes or makes use of a name, business name, trademark, domain name or other word or phrase registered, owned or in use by any individual, body corporate or belonging to either the Federal, State or Local Government in Nigeria, on the internet or any other computer network, without authority or right, and for the purpose of interfering with their use by the owner, registrant or legitimate prior user, commits an offence under this Act and is liable on conviction to imprisonment for a term of not more than 2 years or a fine of not more than =N5,000,000.00 or both.”

The major ingredients to note here is that;

·        the offender must have an intention to interfere with the owners name , business name, trademark, and domain name

·        the owners name , business name, trademark, and domain name must be owned or be in use by the owner

·        the act must have been carried out in the internet or any computer network

·        the act must have been without authority

The court exercises wide discretion when awarding penalties against convicted offenders. Section 25(2) further stipulates what a court must take into consideration when awarding penalty. The court considers;

·        refusal by the offender to relinquish, upon formal request by the rightful owner of the name, business name, trademark, domain name or

·        an attempt by the offender to obtain compensation in any form for the release to the rightful owner for use of the name, business name, trademark, domain name

In addition to the penalty specified under this section, the court may make an order directing the offender to relinquish such registered name, mark, trademark, domain name, or other word or phrase to the rightful owner.

How can victims protect themselves from cyber-squatters?

There are numerous ways a victim can protect himself from cyber-squatters and they are;

1.      Making a complaint at Internet Corporation for Assigned Names and Numbers (ICANN) – ICANN makes use of UDRP (Uniform Domain  Name Dispute Resolution Policy). This is an online dispute resolution mechanism that handles ownership of domain name disputes. The owner of a domain name can file a complaint before ICANN accredited dispute resolution service provider. ICANN would either cancel such domain name or order that it be transferred to the rightful owner. Some conditions must be fulfilled before a complaint may be made to UDRP and they are;

·        the domain name must be identical or similar to an existing trademark or service mark in which the complainant has rights

·        the complainant must prove that the cyber-squatter has no rights or legitimate interest in the domain name

·        the domain name has been registered and it is been used in bad faith.

Thus, it is only the owner of a registered trademark that can successfully file a complaint. Complaints can only be brought  by those whose domain name is gTLD (generic top level domains) or Country code top-level domains.

2.      Proceedings under Nigeria Internet Registration Association( NIRA)

This is the Nigerian Registry for .ng domain names. The owner of a domain name may institute his action at NIRA if his domain name is a ccTLD and ends with .ng. It has its own dispute resolution policies and rules. The conditions to be satisfied before a complaint is brought and the remedies available are same as bringing an action under ICANN.

3.      Institute Proceedings under the Cyber CrimesAct

Cyber-squatting is a criminal offence and it is prohibited under Section 25. Cyber-squatters are liable to imprisonment of two years or a fine of N5, 000,000 or both. To institute an action, the domain name owner does not need to have a trademark so long as his registered business name is the domain name. The complainant is required to file an action with the police before an action can be commenced. The court exercises its discretion in awarding penalty.

4.      Bringing an action under Civil Wrong

Cyber-squatting cuts across several areas of law including Intellectual Property, Trademark, Passing off, and Deceit and so on. An action can be instituted under the Trade Marks Act because the Act accommodates actions arising from domain name disputes and cyber-squatting where the domain name is a registered trademark.

Cyber-squatting is not only regarded as a crime but it is seen as a serious threat to business. Thus, to prevent cyber-squatting, business owners should secure their domain names by registering their trademarks at the start of business before it is too late.



Blessing .C.  Madu

Counsel



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