When (not if) someone does something online that violates your intellectual property rights, there are three useful tools that can help you regain exclusivity and maintain control of your image on the web. These won’t work in all cases, but when they do, they are good, cheap alternatives to traditional litigation.
Domain Names that Infringe on Trademark Rights
If someone else registers a domain name that is confusingly similar to a trademark that you own, the Uniform Domain Name Resolution Policy (UDRP) provides a procedure for seeking to acquire the domain name.
Under the UDRP, a trademark owner can obtain an order requiring the owner of infringing domain name to give it up if they are able to present evidence of three basic factors:
- The disputed domain name is identical or confusingly similar to a trademark or service mark in which the complaining party has rights, and
- The alleged infringer has no rights or legitimate interests in respect of the disputed domain name, and
- The disputed domain name has been registered and is being used in bad faith.
The UDRP process is relatively quick—often taking less than 60 days. In addition, once the possibility of a UDRP action is raised, settlement talks many times quickly come to fruition—often further reducing the amount of time that you have to stress over someone else holding the domain.
Unauthorized Use of Original Content
Although much-maligned by many online commentators, the Digital Millennium Copyright Act (DMCA) – when used properly – serves important functions that equally protect mega corporations and small business owners.
The DMCA allows copyright owners to essentially compel (due to the penalties in place) ISPs to remove content from their servers that infringe the owners’ exclusive rights. For DMCA purposes, “ISPs” are broadly defined, and include websites like forums, blogs, Facebook, Twitter and Pinterest.
An appropriate DMCA notice must include sufficient information to give the ISP a reasonable degree of certainty that the claim is valid, and if it does then the ISP must act quickly to remove the infringing material from its site. ISPs take DMCA notices seriously – and making false claims in a DMCA notice can have serious consequences – so it is important to comply with all provisions of the statute to the letter.
Most sites will respond to DMCA notices within about a week. As a result, although they don’t ultimately attack the root of the problem (the individual who posted the unauthorized content), DMCA notices are important tools for protecting a business’s proprietary content.
Violation of Website Terms of Use
Finally, properly written website Terms of Use can provide an additional alternative remedy for pursuing enforcement of your intellectual property rights. While enforcing Terms of Use can still require use of traditional channels, the fact that you can claim breach of contract in addition to other violations only serves to strengthen your position and increase your chances for an efficient and favorable resolution.
Jeff Fabian helps business owners protect their intellectual property so that they can stay focused on running their businesses.
This article is provided for informational purposes only, and does not constitute legal advice.
