Squashing the Squatter on Cyberspace

The first cybersquatting case in Africa came up in Kenya in 2000. It was UEFA v Funzi Furniture ^[1]. Union des Associations Europeennes de Football (UEFA) sued Funzi Furniture, Mombasa, for registering www.championsleague.com in bad faith. Funzi had registered the domain name first. It then asked UEFA to pay $1,450,000 for it. UEFA took the matter to Arbitration and Mediation Centre.[2] Tony Willoughby, the sole panelist, resolved the dispute in UEFA’s favour, stating that:

the domain name is identical or confusingly similar to UEFA’s trade mark (UEFA Champions League) in which UEFA has rights;
the Respondent has no rights or legitimate interests in the domain name; and
the Respondent registered the domain name in bad faith and had been using it in bad faith.

Funzi’s intention was to register championsleague.com to make money from it by reselling it at a very high price and use the domain name to attract visitors to its furniture business.

I think UEFA v Funzi Furniture finely captures what cybersquatting is all about.

Offline or online, a squatter is a squatter.

When you settle on another person’s land or property without authority, you are a squatter. On cyberspace, you are a cybersquatter. Cybersquatting is settling on someone’s domain on the Internet in bad faith.

The Black’s Law Dictionary, 6th edition, defines domain as the complete and absolute ownership of a land. In cybersquatting, think of domain as the land you own on cyberspace. Your domain-name address or web address, like your home or office address, uniquely identifies your domain with you. So anyone who registers any domain-name address identical to yours squats on your domain. That person is a squatter- a cybersquatter. A cybersquatter’s business thrives in confusion, misleading your domain visitors to buy the cybersquatter’s products and services, not yours. A cybersquatter diverts your web traffic to his or her website, thus profiting from your sweats or good reputation. This is why a squatter must be squashed by the law. And this is where Nigeria’s new Cybercrime Act (Prohibition, Prevention, etc.) 2015 comes in.

Nigeria’s new Cybercrime Act criminalizes cybersquatting.

Nigeria passed her new Cybercrimes (Prevention, Prohibition, etc.) Act into law in May 2015. The Act now governs the country’s cyberspace. Signed into law by former President Goodluck Jonathan on 15 May 2015, the Act, amongst other things,^[3] criminalizes cybersquatting in Nigeria.

Section 58 of the Act defines ‘cybersquatting’ as “the acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation [sic] and deprive others from registering the same.

Under paragraph (a), the infringing domain must be “similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration”. Paragraph (b) states that the infringing domain name must be “identical or similar in any way with the name of a person other than the registrant, in case of a personal name.” Paragraph (c) requires that the domain name must have been “acquired without right or without intellectual property interests in it.”

The Act is concerned about an unauthorized person profiting from another person’s or business’s goodwill. Trafficking in a trademark’s or domain-name owner’s goodwill or interfering with existing domains in bad faith infringes on trademark and kills business. So the same principles in UEFA v Funzi Furniture applies under the Act.

Under Nigeria’s Cybercrime Act, cybersquatters risk jail terms, fine, or both.

To stop to cybersquatting and help protect the intellectual-property rights of legitimate domain-name owners, Section 25 of the Cybercrime Act criminalizes cybersquatting. Section 25(1) provides that:

“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 [sic] 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.”

From the provision above:

the offender must have an intention to interfere with the owner’s name, business name, trademark, domain name;
the name, business name, trademark, domain name, or other registered word or phrase must be owned or be in use by the owner;
the act must have been carried out on the internet or any other computer network; and
the act must have been without authority or right.

Most importantly, if the claimant fails to prove intention and ownership, the action fails.

The Court of Law has wide discretion when awarding penalties against convicted cybersquatters who try to be too smart.

The drafters of the Cybercrime Act 2015 know what cybersquatters are up to. Cybersquatters buy up domain names either to make money from reselling them or compete unfairly with their competitors. So cybersquatters can also be your biggest competitors playing dirty. This may be why section 25(2) provides what a court of law must have regard to when awarding any penalty against an offender.

Paragraph (a) of subsection (2) requires a court of law to consider the offender’s refusal to relinquish the infringing domain name at the owner’s formal request.

Under paragraph (b), if the offender wants the owner to compensate him or her in any form before releasing the infringing domain name, it is likely to negatively influence the court’s award for penalty against the offender.

By section 25(3), the court may order the offender to relinquish the infringing domain name to the rightful owner.

It would be interesting to see if a court of law would be willing to go beyond the N5million-penalty limit imposed by the Act under section 25(1).

Cybersquatting Incidents in Nigeria

The Nigeria Internet Registration Association (NiRA) regulates the country code top-level domain (ccTLD), .ng. NiRA recently raised alarm over the growing rate of cybersquatting in Nigeria.^[4] But it did not publish any list to show some of these cybersquatting incidents. I have found 2 interesting incidents reported online:

Konga v Jumia

In June 2012, Berlin-based Rocket Internet, owners of Nigeria’s online-shopping site Jumia Nigeria, allegedly registered about 10 Konga domain names outside Nigeria. Konga is Jumia’s biggest competitor.

One Arnt Jeschke registered the domain names on behalf of Rocket Internet. The domain names are konga.cd (Cote d’Ivoire), konga.cm (Cameroun), konga.ly (Libya), konga.ma (Mauritius), konga.mu (Morocco), konga.mw (Malawi), konga.sc (Seychelles), konga.sh (Saint Helena), konga.co.ke (Kenya), and konga.co.za (South Africa). Konga threatened to sue Jumia for cybersquatting. But there is no record that Konga went to court over the

dispute.

Linda Ikeji v Emmanuel Efremov

Linda Ikeji is Nigeria’s most popular blogger. She blogs on Lindaikeji.blogspot.com(now www.lindaikejisblog.com after her recent copyright-infringement issues with Google, owners of blogspot.com).

In 2011, Emmanuel Efremov registered LindaIkeji.net and used Linda Ikeji’s reputation to earn advertisement revenue. When Emmanuel Efremov’s cybersquatting activity was exposed, he redirected the infringing site to Linda Ikeji’s blog.^[5]

Squash the squatter now.

The law seriously needs to squash the squatter before the squatter squashes the rightful domain-name owner’s balls.

Freedom and openness are the soul of the Internet. But genuine businesses that keep the soul of men and women alive may die if we fail to control some cyber activities. Cybersquatting is not just cybercrime; it is a serious threat to genuine businesses.

When a squatter (whether a domain-name reseller or a competitor) competes with a domain-name owner on cyberspace, it is not competition; it is a crime. Big business won’t be so big if we allow cybersquatters continue to infringe on people’s intellectual-property rights in a domain name because we want to create competition online.

We must realize that what is at stake are genuine entrepreneurs’ reward for innovation and people’s means of livelihood. These two things are what intellectual-property protection is all about. Nigeria’s Cybercrime Act 2015 is a welcome development.

[1] UEFA v Funzi Furniture (Case no D2000-0710) was reported on WIPO’s website, http://wipo.int/amc/en/domains/html/2000/d2000-0710.html; accessed on October 2 2015.

[2] Arbitration and Mediation Centre was established by the World Intellectual Property Organization (WIPO) to provide an internationally recognized dispute-resolution platform.

[3] Read my recent post on the new Cybercrime Act, Cleaning up Nigeria’s Cyberspace- New Cybercrime Act to the rescue,http://www.nigerianlawtoday.com/2015/08/cleaning-up-nigerias-cyberspace-new.html

[4] “NiRA Raises Alarm Over Cyber-Squatting in Nigeria”, Daily Independent, July 2015, accessed on 2 September 2015http://dailyindependentnig.com/2015/07/nira-raises-alarm-cyber-squatting-nigeria/

[5] Read the full story on News Rescue, http://newsrescue.com/man-got-linda-ikeji-suspended-admits-director-cybersquatter-owner-lindaikeji-net/#ixzz3oH9OwNRu, accessed on September 13 2015.

Senator Iyere Ihenyen is an Associate at Assizes Lawfirm. This blog was first published on Nigerian Law Today.