Cybersquatting Law

Cybersquatting is generally defined as the registering, sale or use of a domain name containing a trademark that the registrant doesn’t have the rights to with the intent to profit from the goodwill of the mark. Cybersquatters generally depend upon the goodwill associated with someone else’s trademark. By buying up domain names that are closely linked with a pre-existing business or person, cybersquatters hope to profit through an association with well-known trademarks or through sale of the domain to the trademark owner. Cybersquatters also may have more nefarious purposes such as capturing personally identifying data from unsuspecting users mistyping the URL. Thankfully, there are legal options to help you recover from a cybersquatting-related offense, including the Anti-Cybersquatting Consumer Protection Act “ACPA”.

There are few ways you can tell if you have been the victim of cybersquatting. Generally, you should first check out the domain name that you want to register to see if it leads to a legitimate website. If the address is of a website that looks to be functional and related to the subject of the domain name, then you have most likely just come to the game too late and will have to offer to buy the domain name unless you can make a case for trademark infringement.

But if any of the following scenarios apply to the domain name you’re observing, cybersquatters may be involved: (a) The website is “under construction” for a long time (a year or more); (b) Your browser shows a “cannot find server” error, or (c) The website bears no relation to the domain name.

These results do not absolutely mean that someone is cybersquatting on your trademark, though, particularly if the website in question really is still under construction. Domain name owners can reserve the domain name for two years, so a website that is under construction for more than a year may just mean that the owner wants to take his or her time making the site. You can also visit WhoIs.com to look up the domain name registrant for free and then contact that person to see whether it is being used for a valid purpose or available for purchase.
In some situations, unfortunately, it may be easier and cheaper to pay the ransom for the domain name. Litigation can be very costly and time-consuming; and even if you win your lawsuit, there is no guarantee that you will be able to recover your attorney’s fees, which may be more than the cost of buying the domain name to begin with.

ACPA Lawsuits

ACPA is designed to allow trademark owners to sue an alleged cybersquatter in federal court. If the trademark owner wins, these lawsuits generally result in a court order requiring the cybersquatter to transfer the domain name to the trademark owner and, in some situations, pay monetary damages as well.

For a plaintiff to be successful in such a lawsuit, he or she must be able to prove that the trademark was distinctive at the time the domain name was first registered – that the domain name registrant (the alleged cybersquatter) had a bad faith intent to profit from the trademark – that the registered domain name is identical or similar enough to cause confusion with the real trademark, and that the trademark is protectable under federal trademark law (meaning that the trademark is distinctive and its owner was the first to use the mark in commerce).
The registrant — in order to defend against the claim — must show the judge that he had a reason to register the domain name other than selling it later to the trademark owner or otherwise exploiting the goodwill associated with the trademark.

ICANN Arbitration

The ICANN started its arbitration system after assuming control of domain name registration. ICANN began using the Uniform Domain Name Dispute Resolution Policy (UDNDRP), an international policy aimed at arbitrating most domain name disputes instead of litigating. Under this policy, an action for arbitration can be brought by anyone that claims that: (1) The domain name owner has no rights or legitimate interest in using the domain name; (2) The domain name in question is identical or similar enough to be confused with a trade or service mark that the claimant has rights to; and (3) The domain name was registered in bad faith.

If the trade or service mark owner can establish each of these elements during the arbitration, they will win. When this happens, the domain name will be cancelled and transferred to the claimant. However, there is no possibility of money damages being awarded under UDNDRP.

ACPA Lawyer Free Consultation

When you need legal help with cybersquatting or ICANN, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael Anderson

People who want a lot of Bull go to a Butcher. People who want results navigating a complex legal field go to a Lawyer that they can trust. That’s where I come in. I am Michael Anderson, an Attorney in the Salt Lake area focusing on the needs of the Average Joe wanting a better life for him and his family. I’m the Lawyer you can trust. I grew up in Utah and love it here. I am a Father to three, a Husband to one, and an Entrepreneur. I understand the feelings of joy each of those roles bring, and I understand the feeling of disappointment, fear, and regret when things go wrong. I attended the University of Utah where I received a B.A. degree in 2010 and a J.D. in 2014. I have focused my practice in Wills, Trusts, Real Estate, and Business Law. I love the thrill of helping clients secure their future, leaving a real legacy to their children. Unfortunately when problems arise with families. I also practice Family Law, with a focus on keeping relationships between the soon to be Ex’s civil for the benefit of their children and allowing both to walk away quickly with their heads held high. Before you worry too much about losing everything that you have worked for, before you permit yourself to be bullied by your soon to be ex, before you shed one more tear in silence, call me. I’m the Lawyer you can trust.

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