| 英文摘要 |
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, questions of fundamental rights are NOT open to adjudication by private methods, as they relate to rights in rem and not rights in personam.
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. |
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