The Hindu Business Line : A tame finish to a game of same names

WITH one more click on www.icai.org this morning, I advanced the visitor counter to 1989245. That should be a matter of pride for those in the Institute of Chartered Accountants of India, but I wonder if they are aware of possible encroachments into their identity. For instance, there are routine ads in neighbourhood newspapers of a body calling itself ICA run by CAs, and it is learnt that the ICAI has initiated legal action against the use of like name.

The site www.icajobguarantee.com informs that the Institute of Computer Accountants, is "an ISO 9001 certified National Brand" imparting training on "accounts with the fullest depth encompassing all possible domains, e.g., accounts, taxation, banking, ROC, Excise, CENVAT and allied matters with need-based practical approach."

Going by past history, it is quite likely that the ICAI may have support in stifling its namesakes, but things don't always work in favour of a monolith, going by the decision in a recent case of the PCAOB that went to the National Arbitration Forum (NAF) in the US: Public Company Accounting Oversight Board vs Karl Nagel.

The Board needs no introduction if you're an accountant. It was born in a world that was littered with the carcasses of murdered numbers as a result of Enron fiasco, WorldCom whirlwind and Andersen dumped-in-the-bin. The US Congress established the Board by passing the SOX, or the Sarbanes-Oxley Act of 2002. The Act became law on July 30, 2002. PCAOB "oversees the auditors of public companies to protect investors and further the public interest in the preparation of informative, fair, and independent audit reports of public companies", as its site www.pcaobus.org informs. It is a different matter that among its `news and events' you may not find the recent decision of the NAF.

The problem in dispute was not one of financial fudging but of domain names, pcaob.com, pcaob.org, pcaobonline.com and pcaob-online.com, registered with Tucows Inc in favour of Karl Nagel. Give them all to us, said the PCAOB, because Nagel was "using the domain names in bad faith", intentionally attracting for commercial gain Internet users "by creating a likelihood of confusion" with PCAOB mark and name.

Given the Board's long name and "the well-established practice of the public and the press referring to regulatory organisations by initialisms," the use of PCAOB to refer to the Board was entirely predictable and expected, notes the text of the decision.

It also had a federal trademark registration with the US Patent and Trademark Office for the PCAOB mark filed on March 21, 2003. There was a disclaimer in Nagel's sites, but the PCAOB felt that confusion still persisted because "disclaimers are not always read or understood" and because the lines appeared "at the bottom of the fifth page".

On his part, Nagel did not deny that the site names he had for `PCAOB Online', his financial information services company established on July 16, 2002, were confusingly similar to PCAOB's, but he argued that the Board "technically did not exist prior to July 30, 2002"; by that date, however, pcaob.com and pcaob.org had already been registered.

He also claimed to be "actively engaged in a rapidly growing business", so was not simply squatting on a domain name. So, he contended that it was PCAOB that brought the complaint in bad faith, "in an attempt at Reverse Domain Name Hijacking and to harass the domain name holder."

The Forum observed that each of the following three elements were to be proved to obtain an order that domain names should be cancelled or transferred: One, the domain names registered by respondent are identical or confusingly similar to a trademark or service mark in which the complainant has rights; and two, respondent has no rights or legitimate interests in respect of the domain names; and three, the domain names have been registered and are being used in bad faith.

In this case, "Complainant has failed to sustain its burden of proof as to both its own rights in the alleged mark and Respondent's lack of rights or legitimate interests in the domain names," said the Forum, denying the PCAOB's request for relief. Thus, a sock in the eye, it was, for the SOX body.

This is an instructive case for professional bodies that want to retain their brand name in the Web space.

So, I surf the Net after closing all those irksome pop-ups in www.icai.org about one conference or the other, to try variations of the Institute's URL. "Innovative Computer Associates, Inc. is a full service Software Engineering and Internet Technology Firm," says www.icai.com. "Industrial Control and Automation," is "one-stop source for Servo Products Company and High Quality Tools/Bridgeport replacement parts", informs www.icai-online.com. "Welcome to the home of ICAI: A campaign committed to assisting the prosecution of high ranking public officials and companies accused of crimes against humanity, war crimes, genocide and torture," declares www.icai-online.org, talking about the "International Campaign against Impunity".

The name www.caindia.com has been "recently registered at Register.com". The site www.indianCA.com belongs to Bindi India Info-Tech P Ltd. The name www.icai.edu is not found, so may still be available. "To promote the science, philosophy and art of the chiropractic profession by advocating the highest standard of ethics in practice," is the statement `about us' in www.icai.net. The site www.ica.com is about Eric Mack's eProductivity — a methodology that focuses on three integrated areas that shape the way that you work: "Information Technology, Communication & Collaboration, and Action & Workflow". The International Council on Archives has www.ica.org as its home page.

Though the ICAI may not be interested in pursuing all those owners with CA-sounding names, there is still the worry that any of them may think of robbing the ICAI of its URL under some pretext of domain name hijacking!

AccountSpeak@TheHindu.co.in

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