If your company has a brand worth selling, then it is also a brand worth stealing. This is the fundamental rule in the online marketplace (or jungle), where squatters and scammers target unsuspecting customers and loyal users of brands and companies of all shapes, sizes, and locales.
For attorneys, understanding what to do when there is a serious compromise to a client’s online identity or presence is critically important to giving the client appropriate advice at a moment when they’re likely consumed with the fear of losing business and money. There is no one-size-fits-all solution, so the nature of the scam/infringement, the size of the business, and the client’s budget are all factors in making an appropriate recommendation.
The worst cases, like cloned/mirror sites or phishing sites that are harvesting personal or financial information, require cutting off the scam at its source by using the registry, ISP, or registrar to shut the site off. Getting this done is not always easy, and our team at DomainSkate is often called on to assist corporations in getting this done. To speed things along, having all the information related to the illegal activity is critical. Information such as dates, screenshots, any names, online credentials, numbers, and other information will make getting someone at a registry or ISP an easier process. If the registrant is a serial scammer or operator that has targeted your brand before, or others, that is important to know. Coming in with evidence that is “clear and convincing” will eliminate any concerns that the provider might be making a mistake by shutting down a legitimate site and will have to deal with the consequence.
Another option is to send a Cease & Desist (C&D) letter to the domain name registrant asking them to stop their activities. In many cases a C&D letter will be all that is needed to persuade the registrant to take down the website and/or transfer the domain name so it can’t be used in the future. C&D letters can be particularly effective when the registrant is located in the United States and the threat of legal action has some teeth to it.
A C&D letter should not be over the top or wax on about the potential for damages, criminal charges, monetary damages, or threaten the registrant’s next of kin. Don’t take a bazooka out of the quiver to demolish an ant hole. If the registrant is doing something innocent or unwittingly and it turns out they are actually just a nice person living in the midwest who happens to be a fan or doesn’t understand the Internet and that the letter could end up on TMZ or Yahoo! News, with the conversation focusing on why a giant corporation and their evil lawyers are attacking such a nice person. Ask Oprah Winfrey’s former attorneys about this.
If you have sent a C&D letter but the registrant has ignored it, then it is likely time to act. The nice thing about issues that concern domain names is that every domain name is subject to the Uniform Domain Dispute Resolution Policy (UDRP), which creates a streamlined and much cheaper way for brands to stop infringing activities. A UDRP is purely an action over the domain — there is no ability to recover damages or other types of relief. However, if the registrant is located outside the U.S., is damage-proof, or the real asset is the domain itself, then a UDRP can be a nice option.
A UDRP proceeding can take just a few months and be filed for roughly $1,300 U.S. A UDRP complaint is relatively straightforward to prepare, however, thought should be given to which arbitration provider is chosen (some have more favorable win rates for complainants than others) and that proper evidence and case/arbitration precedent is cited. Most complaints go unchallenged, particularly where the activity is obviously targeting the brand owner, however, the arbitrator can still deny the complaint if the argument is not prepared carefully and expressed cogently.
With these options, the best defense is a good offense when dealing with IP theft online — knowing what is happening early on, preventing things from escalating, and getting out in front of problems are always the best ways to deal with the situation.
If these risks are relevant to your business, proactively protecting your brand reputation and revenue is the safest solution. Click below to request a free demo of DomainSkate and discover how we’re helping brands stay protected!
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