Cyber-squatter and Copyright Infringement - Assignment Example

Internet Law Cyber-squatter and Copyright Infringement Name Course Professor Date Question Two: Part A The use of another party’s trademark is taken as an infringement as it can be used to disrupt the legal party’s business objectives, damage its reputation or be used for any other purpose that the owner may not have intended.1 Cyber squatters have used trademark with close similarities and in such instances, infringement is noted if the trademark in question is used for similar purposes. The use cannot be permitted since its use in relation to the original trademark creates confusion or increases the likelihood of confusion. Trademark infringement in cyber spaces spans the local, regional and international jurisdictions and thus there are approaches that have been set to deal with such infringement. The options available for trademark owners are critically evaluated in this discussion for a case involving “cyber-squatting”. Eventually, it will recommend the best course of action that is suitable for trademark owners. Generally, there are two significant options that have been put up and are most applicable for cases and incidences that involve “cyber squatting”. These are taken as mechanism to counter cyber-squatters. Anti-cyber squatting Consumer Protection Act provides the legal mechanisms that the aggrieved party can depend on and sue under its provisions. This Protection Act was enacted to prevent the cases where most celebrities and companies had to pay exorbitant fees that were charged by cyber squatters.2 In turn, when the aggrieved party decides to pursue “cyber squatter” through ACPA, then they ultimately have to engage in a lengthy process. ACPA authorizes such a party to sue alleged cyber-squatter in a court. Trademark owner then obtains a court order that allows for the transfer of the domain name to trademark owner. In turn, the trademark owner has to prove all of the following in order to stop a cyber squatter from using or holding a domain. The owner must establish that, the domain name as registered was based on bad-faith intent for profiting from the trademark.3 Generally, the actual act where a person may buy an abandoned or unused domain name may not technically be illegal in normal conditions. Where a cyber squatter use the domain name in ‘bad faith’ eventually that can cause legal trouble. ‘Bad faith’ is taken as a purpose that counters in clear ways to the intention or reputation of a trademark or a celebrity name. For instance, a cyber squatter that chooses to create a fan site using a domain name for a trademark can be protected under anti-cyber squatting law language. If at all the use of domain name is for drawing traffic into a pornography site, then, the trademark owner can sue in the court for a fine or injunction. Secondly, the owner has to establish that, the trademark was so distinctive when the domain name was registered first. The rule is related to intentions that a cyber squatter may had and foreseeable benefits that would have necessitated the cyber squatter to opt to come up with a derivative of the profitable domain.4 A prove is used to recap the background and the possibilities that the alleged cyber squatter must have known that such a domain exist where such actions cannot be taken as pure coincidence. A distinctive domain must have some operational aspects; meaning that it must have been reasonably known and under all circumstances, the cyber squatter cannot deny of not being aware of its existence. The element, distinctive can also be established through the differences in the times when the owner’s domain was launched compared to the derivative one. Eventually, it is possible to establish the possibility that the domain was distinctive if at all there is time difference which means that the other party must have relied on some insights for the other domain. Thirdly, it upon the owner to establish that, the domain name is confusingly similar or identical to the trademark. The authority can then demand a change of the name as individuals’ are supposed to build their trademark without relying on other people’s idea.5 Domains are connected to intellectual property rights, trading rights and reputational rights. A similar trademark would eventually affect the operation of the owner and can affect the company name. Significantly, cyberspaces are feared due to effects they may have on individual’s or company’ reputation. Owners must be able to manage their domains and any information that is pasted to the larger audiences. It is illegal to rely with other people’s trademark to advance one’s agenda without their consent and thus, when a domain is found out to operate under same name, cyber squatter has to relinquish it to the owner. As a general rule, trademark infringes the rights of the other party if at all it is meant to compete by selling the same ideas or serving similar purposes through similar channels. In most cases, domains are established to serve both national and international purposes. Eventually, international consumers can be confused when similar domains are dealing with one purpose. This is a well based and established basis for infringement as international consumers can think that the domain is still connected to the source. If cyber squatter uses the logo to promote sales both at international and local markers and thus diverge consumers attention to something that is not originally connected to exact sources, then owner can proceed in recovering the domain. Fourthly, trademark owner has to establish that the trademark qualifies under the laws for protection. Eventually, the trademark has to be distinctive and the owner must be the first person to have used it. There are legislations that are enforced in commerce and currently trademark laws reflect the advances of digital technology. In turn, there are requirements, policy and reasonable implementation that may ensure termination and hold a party for infringement in such circumstances. Irrespective of whether the cyber squatter operates under different jurisdiction, actions that affect the first owner in a negative way carry severe legal consequences. These laws are governed by international treaties which protect and resist individuals from actions of steeling or using valuable trademarks. The laws are enforced in various authorities to protect trademark as a property and necessary organizations are mandated to ensure that the aggrieved party secures justice. Hence, for protection of a trademark, there are legal requirements that require the owner or a company to register a trademark. This offers evidential steps to follow when such a circumstance arises and promote the necessary course of action to follow. The right process of registration ensure that completed process secure the trademark’s owner from a detrimental outcome. Eventually, any action carried out with another party’s trademark without the owner’s consent will ultimately be taken as an infringement of the legal stand on trademark law.6 The actions of a cyber squatter may then be followed by heavy penalties as the court deems it appropriate or according to the level of infringement that might be bought forth by the owner of a trademark. In some cases, cyber squatter must pay some money damages after the transfer is authorized. If at all any transactional or activity that lines with the owners use of the original domain is allegedly done by the domain held by a cyber squatter, there are severe legal consequences that involves the damages. Selling valuable trademark is highly resisted by international law in order to protect companies. Generally, the owners will have always registered the company’s trademark and that mean there would be evidential steps to follow if such a claim arises where the court is able to mediate on whom and what was infringing. There are various penalties that follow such infringement when it is established. Significant penalties also come with a number of possible remedies but most common one is for the cyber squatter being stopped from using the trademark and relinquishes it to the owner. The use is terminated through the court’s action as it is taken to have adverse effects on long-established reputation. Money damages are taken as a remedy and particularly it is established that through the domain name, the cyber squatter had made some money. Money damages are also enforced to be paid if at all there is a risk that the owner can undergo in future following the infringement by the cyber squatter. One major risk that the owner may suffer is reduced sales of goods or services due to presence of similar services or products that were circulating in the market. It can also be expected that there might arise a future claim from consumers based on poor quality or a detrimental effect on the company reputation that cannot be measured at the time. Damages can be counted for the grief caused by a cyber squatter who sit on such a popular domain name. The damage may be awarded depending on the number of years the person has used the celebrity or a company’s domain name. In most cases, the owner find it hard to use the domain as legal owner and on pursuing the law, the might not be satisfied if the cyber squatter is just compelled to relinquish it but would in most cases considered a price to be paid according to what the current owner assigns. However, a successful prosecution may not be guaranteed as the cyber squatters can raise defenses against what they are sued for. Defenses to ACPA are raises and a cyber squatter demonstrates that the reason to register a domain name was different from selling it back to an owner to make profit.7 The court may then allow the person to keep that domain name. ACPA as an option is considered as lengthy process and requiring the needs to establish a number of aspects to ascertain the infringement. It may require the need for an attorney to get information and professional help for the same. Difficulties also arises and particularly when a cyber squatter come from another jurisdiction. Cost related issues may make the ACPA process had to follow and particularly when considering that the outcome may not always be positive for the claimant. The best course of action that is more feasible for pursuing such a case is through international arbitration system under Internet Corporation of Assigned Names and Numbers, the ICANN. Most experts that deal with trademarks considers this arbitration system since it is faster and also less expensive compared to ACPA.8 Arbitration is preferred in this case where a complainant may bring an action for a domain that is confusingly similar, where domain owners has no rights or where the domain is used or registered in bad faith. Eventually, it is cancelled and transferred to a complainant but financial remedies are not accorded. Question Three: Part B There are legal options for Big in dealing with online copyrights infringement following the common legal options that have followed copyright infringement on the Internet. Content duplication and downloading of unwarranted materials are most common and frequent copyright violation. These materials lead to loss of millions of dollars as the downloading parties may use the content for resale. There are ways in which Big can deal with these types of P2P infringers. However, before starting a legal case, Big should find the details about a party that infringes the copyright and the hosting company. Subsequently, they should report copyright infringement to authorities including; hosting companies, internet crime reporting organizations, search engines and payment processors. After collecting the information, they can mail it to Ad companies urging them to suspend infringer’s ad account which will blow the infringer.9 Big can also take an action against the infringer based on previous information that was collected. Big will need to send a ‘cease and desist’ email asking the infringing website to shut such operations with a 24 hours time. In addition, they should send cease-and-desist emails or letters to operators that are connected with such sites hence lead to voluntary shut down by some. Generally, Big should send these letters to major platforms like Google, MSN and Yahoo and can still use emails notifications and fax. Specifically, they should send to Hosting Company and ask them to suspend hosting the account immediately. There are other parties that are supposed to be contacted such as advertising networks that the infringer uses, payment processors and others that might be connected in order to discontinue the services. Mails that are sent to third parties promotes to a collective action that may limit the actions and intentions of the infringer. Cease and Desist emails should only be sent indicating the extent and the nature of infringement and when no response is got within 24 hours after sending the mail. There are oppositions as to this course of action some sites owners has in the past refused to send such warning letters to customers or in turn hand over any of their personal information even when it is a legal requirement to do so. Some argue that the government’s plan to sanction or punish people suspected for illegal downloading is tantamount to assault on human rights and thus constantly fight such anti-piracy laws Problems may arise when such parties take a collective action against disconnection and therefore ends up repeating copyright infringement. Most defend non-commercial piracy requiring users to be admitted to download episodes for personal use and legalizing such actions. Big should take a legal action should message send for cease-and-desist fails. If the behavior continues, the claimant should let the infringer know that compensation payment will be required if any legal action is taken. There are trade-offs that arises from file or content sharing and a number of risks can follow. Materials that are shared and which are protected by copyright laws results to breach and thus, copyrights law can be applied to ensure that the owners of are protected from such actions. A company is taken as a legal entity and can sue or is sued since there is wide-range of rules and terms that are available in commercial environment. If at all the P2P platforms does not stop their activities that lead to file sharing and illegal downloading, a legal action should be followed where the law will require Big to prove or show traceable file sharing. Eventually, the court will authorize the P2P platforms to stop their activities and can also be required to pay significant financial penalty to Big. Under copyright law, it is well stipulated that file sharing is illegal and particularly for copyrighted materials like music without the permission of copyright owner. Digital Economy Bill is one of the legal documents that provide the channels for entities like Big to pursue the right course of action. One requirement that is required before preceding a legal action is a proof that the party in question has breached the copyright law and failed to respond positively to cease-and-desist messages sent. If they continue to breach, one of the possible step to be taken would be to restrict their bandwidth available to ensure that they do not tamper with Big’s content as it is the case. In some cases, if their actions are generally involved in copyright infringement, total disconnection, possible ban or suspension from Internet can follow as remedial actions.10 These are the most possible actions that are taken against the entities that are persistent infringers of copyrights. Big has an option to settle all these out-of-court with the mentioned P2P. They should then ensure that the companies’ inn questions are aware of a preferred action that might avoid the incidence where they might incur a lot of cost due to ligation process. If at all the parties are willing, they can have a meeting with an arbitrator in order to determine the necessary actions to be carried and the amount of money that will Big can recover from them for allowing unauthorized file sharing services to their users.11 Consequently, they must ensure that the companies desist from taking or facilitating any further activity that infringes the copyright regulations. The peer-to-peer file sharing can be stopped by controlling the scale of access to other sites and the case will not have to go through the court process if at all the operators agrees on the best action to settle on. The move by Big might be more preferred by these platforms as it will help them to secure their other interests that are carried out through their sites that may not necessary involve copyright infringement but can be affected if at all a litigation process is allowed to take its course. Intermediary platforms offers a good ground for unauthorized file sharing and in some cases voluntary shutdowns follow after organizations have sent cease and desist letters to sites operators. Collective legal actions have been taken but Big can also take an action against file-sharing activities promoted by P2P. Each filed case can result to statutory damage being awarded. If the court of law establishes that the sites did not respond to available options that would have offered them relieve, they can enforce a permanent injunction against the defendants due to their established intent to facilitate copyright infringement. However, the process followed through litigation may take longer as the legal and law enforcement teams have to rely on collected evidence. On behalf of the company, they will have to carry out investigations to note the actual occurrence of files transfer to apprehend the sites in questions. The time-scale for the process might prove to be hectic and cost consuming though there would be imposed penalties that would still favor Big. In addition, in case the sites raise a defense, the claims may be nullified which will have adverse impacts on the company.12 Most of the cases that have followed the violations of copyright laws necessitate the evaluation of software that violates the law following downloading and may require the party to work on the software features to avoid illegal sharing, uploading and sharing among users. Litigation may not be suitable course of action but it might be considered if there are damaging effects to Big’s financial objectives in order to stop adverse effects to business objectives. Enforced law will monitor the activities carried out by the platforms to ensure that the necessary action is taken for persistent infringers.13 Intermediary liability is instituted for communication platforms in the Internet. Platforms like Google, Facebook, Twitter and others are liable for online activities that their users carry out. Similarly, P2P in this case are liable as they are platforms where users carry out downloading and file sharing activities that are against copyright laws. Governments around the world are increasingly aware of this kind of activities in online platforms and act as intermediaries to block the users from undesirable actions that involve online content in order to suppress copyrights violations.14 This approach is meant to make the communication intermediaries more responsible and accountable for their users activities and what they share thorough their platform. Liability regimes that may put platform companies at risk are in form of censorship-by-proxy. However, the actions of private communication companies in the online platforms poses a real policy problem to governments as well as organizations that work to suppress online activities that infringe copyright regulations. The government and other legal enforcement actors relies on these intermediaries to assist in regulating such use which can only be enforced after it is ascertained that the intermediary in question does not act responsibly. Eventually, it is difficult to come up with a concrete solution for now since not all intermediaries will require or prohibit their users to regulate their activities as per the copyright policies that protect sharing of contents from other companies.15 There has not been a comprehensive policy or an approach to ensure that copyright infringement is stopped. For now, the only possible solution is to rely and work with global platforms to advocate for policies that can protect innovation, users’ rights and privacy.16 The law that is set cannot satisfactory solve the problem meaning that, it can only be corrective for now instead of being preventative in nature. What makes the matter worse in trying to establish the companies’ identity due to Private Whois that restrict contact details of a website to be viewed publicly. To view the Whois information, a registrar has to be contacted.17 Bibliography 1. Lipton, Jacqueline D. "Beyond Cybersquatting: Taking Domain Name Disputes Past Trademark Policy." Wake Forest L. Rev. 40 (2005): 1361. 2. Mercer, John D. "Cybersquatting: Blackmail on the Information Superhighway."BUJ Sci. & Tech. L. 6 (2000): 290. 3. Gilwit, Dara B. "Latest Cybersquatting Trend: Typosquatters, Their Changing Tactics, and How to Prevent Public Deception and Trademark Infringement, The." Wash. UJL & Pol'y 11 (2003): 267. 4. Mathew, Alex Roney, A. Al Hajj, and M. Ambusaidi. "Cybersquatting." InEducational and Information Technology (ICEIT), 2010 International Conference on, vol. 1, pp. V1-10. IEEE, 2010. 5. Partridge, Mark VB, and Scott T. Lonardo. "ICANN Can or Can It?: Recent Developments in Internet Governance Involving Cybersquatting, Online Infringement, and Registration Practices." ABA Section of Intellectual Property Law: Landslide 1, no. 5 (2009): 24-29. 6. Verma, D. P. S., and Ruchi Kakkar. "PROTECTION OF TRADE MARKS." 7. Rodrigues, Rodrigo, and Peter Druschel. "Peer-to-peer systems."Communications of the ACM 53, no. 10 (2010): 72-82. 8. Bridy, Annemarie. "Is Online Copyright Enforcement Scalable?." Vanderbilt Journal of Entertainment & Technology Law 13, no. 4 (2011). 9. Goel, Sanjay, Paul Miesing, and Uday Chandra. "The impact of illegal peer-to-peer file sharing on the media industry." California Management Review 52, no. 3 (2010): 6-33. 10. Liberatore, Marc, Robert Erdely, Thomas Kerle, Brian Neil Levine, and Clay Shields. "Forensic investigation of peer-to-peer file sharing networks." digital investigation 7 (2010): S95-S103. 11. Storch, By Joseph, and Heidi Wachs. "A legal matter: 1 peer-to-peer file sharing, the digital millennium copyright act, and the higher education opportunity act: how congress and the entertainment industry missed an opportunity to stem copyright infringement." Albany Law Review 74, no. 1 (2011). Read More