Monday, June 6, 2011

Internet Trademark Infringement Basics for Business

Unfair internet business practices have become a common source of litigation in recent years. This type of dispute may involve various types of legal claims ranging from defamation and trade libel to infringement of trademarks. Trademarks, which identify the source of goods and services, are constantly infringed online.

How are trademarks infringed? There are a couple of common scenarios that I come across in my practice as an internet trademark infringement attorney.

First, a competitor may conduct keyword advertising using another business' trademark to lure customers to a competing website. In other words, a business' customers perform a Google search for it and click on an advertisement which appears for the business' trademark but, the customer is taken to a competing business' website after clicking on said advertisement. There are many different factual scenarios under which this may occur. Furthermore, assigning liability is very difficult and complex. Not all circumstances of keyword bidding on competitor's trademarks result in the requisite consumer confusion required for a trademark infringement claim. Nonetheless, this is a common source of what we term unfair internet competition and initial consumer interest diversion.

Another common source of internet trademark infringement can be what is termed cybersquatting. Cybersquatting occurs when someone owns, registers or traffics in a domain name in bad faith by utilizing the goodwill associated with a business owner's trademark. There is actually a federal statute devoted to this claim called the Anti-Cybersquatting Consumer Protection Act. Although styled as a consumer protection act, it is most often used by businesses to prevent competitors and profiteers from diverting consumer interest and obtaining domain name real estate online.

Two common ways that competitors steal potential business and compete unfairly online include keyword bidding infringement and cybersquatting. Frequent search engine policing usually uncovers such unfair competition and early detection is usually the best preventative medicine. Most internet trademark infringement will cease pursuant to a strongly worded cease and desist letter. Some infringers may challenge the business owner's trademark rights and, in that case, litigation is often required. In many cases, a successful plaintiff in a trademark infringement may recover its attorneys fees and costs.

1 comment:

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