What Is Cybersquatting?
Business owners invest years of effort and many thousands of dollars to establish value in a trademark and/or tradename. It comes as a shock to find that another person has registered a domain name that is deceptively similar. This often is not discovered until damage is being done. Many times a customer complains that he or she was trying to find the Business but ended up elsewhere. Sometimes the elsewhere is a competitor’s website. In other cases, the registrant of the offending domain name offers to sell it to you for an exorbitant price. In still other cases you may find that you are a victim of typosquatting—a variant of cybersquatting where a domain name is registered that deliberately includes a typo commonly made in typing a legitimate web address. When a person errs and makes this typo, he is directed to a competitor’s website. This is also called URL hijacking. None of which is acceptable business practice.
What Can Be Done?
The business owner has several options. One is to make use of the Uniform Domain Name Dispute Resolution Policy (UDNDRP). The advantage of this procedure is that it is similar to arbitration. It is quick and relatively cheap. However, the relief available is limited. The offending domain name can be cancelled or transferred to the complainant. No award of damages or legal fees can be made. Information concerning the filing of a complaint can be found on the Internet Corporation of Assigned Names and Numbers (ICANN) website, www.icann.org. Another option is offered by the Anticybersquatting Consumer Protection Act (ACPA) 15 U.S.C 1125(d). A claim can be filed in federal court or in state superior court. The advantage here is that the available relief is comprehensive including damages, statutory damages, cancellation of domain name, injunctive relief and a possible award of legal fees. Because this is a lawsuit, legal counsel will be needed.
While the burdens of proof vary in the two proceedings, the main thrust of the case will be to show that the registrant is using the offending domain name in bad faith. “Bad faith” is a term that refers to any act that is intentional or maliciously done against another. It is to be compared with “good faith” that refers to an honest mistake, or genuine belief that the person’s actions were completely sincere regardless of the outcome.
When faced with a problem like this, an aggressive response is often best. Sometimes the conduct is unintentional, or not malicious (done in good faith), and can be easily remedied. In other cases, this conduct amounts to nothing less than a deliberate theft of an established business’ goodwill. Damages can be quite substantial and litigation may be the remedy of choice.
Councel should be consulted immediately to guide the initial investigation and assist in determining the most effective course of action. Platt & Westby, P.C., is available to assist you in any cybersquatting matter you may be facing. Call us at 602-277-4441 for a free initial consultation with one of our experienced attorneys today.