Perils of the internet
- Part 1
How did we ever manage without the
internet? From finding out what song was number one fifteen years ago to whether
you need to take a warm coat on your trip abroad, a quick search will give you
the answer. As a business owner, it has opened up the market place, made you
more accessible to potential clients and enabled you to advertise to a wide
audience for little or no cost.
Alongside these
commendable benefits, there has emerged three unethical, and sometimes illegal,
practices: plagiarism, cybersquatting and passing off. Unfortunately, anyone who
promotes themselves on the internet can be a potential victim.
In this
issue, we are going explore the risks, effects and actions of cybersquatting and
passing off and what can be done if it happens to you.
Cybersquatting
Definition: The registering of a domain name on the Internet
in the hope of selling or licensing it at a profit to a person or entity who
wishes to use it.
With the ease of registering and purchasing a domain
name, the cybersquatter has seen the opportunity to make some easy money. His
only intention is to hold you to ransom for a name that he knows you will want
and is connected with your business. You don't even have to be a famous
celebrity or a multi million pound company, smaller entities and individuals
can be, and have been targeted.
Passing Off
Definition: The act of
misrepresenting his or her goods or services as being the goods and services of
another, and also holding out his or her goods or services as having some
association or connection with the other when this is not true.
This
is the practice of imitating a successful company or individual to profit from
their brand or reputation and reap the rewards. You could be blissfully unaware
of their existence for some time as they populate a similar website to your own,
creep up the search engines and ultimately misdirect potential customers away
from your service to theirs.
What can be done?
Neither of
these situations are hopeless cases... there is help available - some of it free. Nominet is the
government recruited watchdog for UK registered domains. For .com .net and .org,
WIPO (World Intellectual Property Organisation) will advise and help you.
The success of dealing with either scenario is down to following the correct
procedure and having the necessary evidence to substantiate your claim. You will
need to demonstrate your rights to the name. This could be by a trade mark (very
conclusive but not essential) length of time you've been using it and evidence
that you are established in the market place by that name. You will also need to
explain why you determine the registration to be abusive. This could include
evidence that the perpetrator was familiar/aware of you, they are a competitor,
you've lost business because of their actions etc.
If you feel you have
fallen victim to either cybersquatting or passing off, start collecting
evidence. Take screen shots of: - their website showing the domain name,
- your registration date at www.who.is,
- their registration at 'who.is' (showing
date registered)
- any prior dealings between you.
With your evidence
safely stored away, you are now ready to contact the other person. In your
letter or email, explain who you are and why you are contacting them. There is a
chance that it could be an innocent mistake. Include in your letter a proposed
solution to the problem. It is always better to correspond in writing rather
than phone calls as these can be used as evidence if required.
If
the letter doesn't work, it's time to contact the professional bodies of either
Nominet or WIPO. Both of these organisations offer a mediation service
whereby an expert is assigned to your case to speak to both parties in the hope
of agreeing an amicable solution. This service is free of charge.
In many
cases the involvement of mediation is all that is needed. However, in a small number of
cases, it has to be taken further. At this point a fee is paid for an expert
lawyer to be assigned to your case and make a decision based on the evidence
submitted by both parties. It's worth noting that you only get one chance to
submit your evidence and it can't be added to during the process, so include
every screen shot, email or letter. If you win your case, the person is named
publically as an abusive registrant and you gain control of the domain name in
question. It is also then possible to claim back your fees and expenses in a
small claims court.
Other action to consider is contacting Trading
Standards, The Intellectual Property Office (IPO) or a solicitor who specialises
in 'Intellectual Property' Law.
The authors have first hand experience
of dealing with the issues raised in this newsletter. If you find yourself in a
similar situation, you can contact us directly for advice (number below). In the meantime,
don't have nightmares!
Happy New Year!! |
