Act, 2015, in its ingenuity defines Cybersquatting as the “The acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is; (i) similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration; (ii) identical, or in any way similar with the name of a person other than the registrant, in case of a personal name; and (iii) acquired without right or with intellectual property interests in it”.

The unveiling of the Nigeria Air Logo on Wednesday, 18th July, 2018 at the Farnborough Air Show in London was indeed a great development amidst the failed attempts in the past to establish a Nigerian air carrier. The airline is expected to commence operations in December, 2018.

However, it was discovered that the domain name was acquired by a private individual on the same day, and that this private individual is willing to sell the domain name to the Nigerian Government for N48,000,000.00 (Forty-Eight Million Naira only) (approx. $130,000). Whilst this has the constituents of a practical joke or hoax, it should be a cause for concern for the investors in the Nigerian air carrier.

Had this occurred prior to 2015, the chances of securing the domain name would have been limited, however the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015, in its ingenuity defines Cybersquatting as the “The acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is; (i) similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration; (ii) identical, or in any way similar with the name of a person other than the registrant, in case of a personal name; and (iii) acquired without right or with intellectual property interests in it”.

In other words, cybersquatting is the registration of a domain name with the intent to profit and deprive legitimate owners of the business represented in the domain name from registering same. If you had plans to cybersquat, you would acquire without right, a domain name with the exact or similar name of an existing person, business or trademark. Google, BBC, eBay and celebrities like Tom Cruise, Jennifer Lopez and Wayne Rooney have had to either pay off or institute actions in court against cybersquatters.

 

To succeed in a domain name dispute in Nigeria particularly under passing off or in tort, trademark registration is not mandatory but will boost the strength of your case as same is defined in Section 67 of the Nigerian Trade Marks Act extensively to include a domain name. So, if there is a trademark registration and it can be successfully proven that the domain name was registered and used in bad faith for financial gain or to destroy the reputation of and/or deprive the user from registering same, the courts will be likely to decide in the favour of the claimant and the cancellation of the domain name or transfer to the claimant.

A poignant attribute of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015 can be found in Section 25(1) which criminalizes Cybersquatting on conviction to imprisonment for a term of not more than 2 (two) years or a fine of not more than N5,000,000.00 (Five Million Naira only) or to both fine and imprisonment.

Section 25(3) of the Act goes further to empower the Federal High Court to make an order directing the offender to relinquish such registered name, mark, trademark, domain name, or other word or phrase to the rightful owner.

In the light of this, there is hope yet and the Nigerian air carrier appears to have a good course of action to secure the domain names from the offender.

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