Typosquatting
Typosquatting is a common form of cybersquatting. Cybersquatting is a practice by which a third party tries to profit from the goodwill of another’s trademark. As many businesses use their existing trademarks as their domain names to attract potential customers to their websites, cybersquatters will often try to preemptively register domain names incorporating these trademarks. Typosquatting relies on the theory that a number of Internet users are likely to make typographical errors when inputting a website address.
Types of Typosquatting
There are four main categories that a typosquatter will follow when creating a domain name: (1) misspellings based on typing errors; (2) common misspellings, which include foreign language spellings and phonetic spellings; (3) differently phrased domain names, which include singular/plural terms; and (4) different top-level domain names, which include substitutions of “.com” for “.org”, etc. The most prevalent of these categories is a misspelling based on typing errors.
Common typing errors exploited by typosquatting include, for example:
Letter swapping: http://www.kk-lpl.com
Missing letter: http://www.k-llp.com, http://www.kkll.com
Letter doubling: http://www.kk-lllp.com
Slipped finger typo: http://www.kk-ll.com, http://www.kk-lllp.com, http://www.jj-kkp.com
Domain Tasting
Cybersquatters generally register several variations of domain names, taking advantage of domain tasting. Domain tasting allows one to test drive a website for a period of five days during a grace period. Cybersquatters gather information by monitoring their various websites. They record each time an Internet user mistakenly types a domain-name that directs the user to one of their websites. During the grace period, cybersquatters compare the amount of traffic flowing to each of their alternate websites. Then, they use the information gathered to sell advertising for the sites that receive the most traffic. Then they drop the domains found to be insufficiently profitable. Typosquatters derive advertising in various manners. For example, selling ad space to competitors of the original site or redirecting traffic to pages dedicated to related products. Users may believe they accessed an authentic site finding similar logos, website layouts, or content.
Legal Remedies for Typosquatting
In cases of typosquatting, trademark owners may file suit in U.S. federal court under the Anticybersquatting Consumer Protection Act (ACPA) or can choose to pursue an administrative proceeding under the Uniform Dispute Resolution Policy (UDRP) conceived by the Internet Corporation for Assigned Names and Numbers (ICANN) to gain ownership of the cybersquatted domain name.
The Anticybersquatting Consumer Protection Act (ACPA)
The ACPA, which includes a clause specifically aimed at combating typosquatting, was designed to prohibit cybersquatters from registering Internet domain names containing third-party trademarks solely to profit from such trademark use. Whether cybersquating has been committed turns on the 9 factors outlined in the ACPA. The trademark owner bears the burden of proving bad faith based on these factors. The ACPA, in addition to obtaining a transfer of the domain name from the cybersquatter to the trademark owner, provides for actual damages caused by the cybersquatting and attorney’s fees. The ACPA also provides that any cybersquatter, who in bad faith uses, sells, or tries to sell a domain name that infringes another's trademark, may be subject to penalties of up to $100,000 in statutory damages per domain name abuse incident.
The Uniform Dispute Resolution Policy (UDRP)
Alternatively, businesses may file a complaint under the UDRP to gain ownership of the infringed domain name. The UDRP allows a trademark owner to challenge domain name registrations in expedited administrative proceedings. Under UDRP procedures, the trademark owner must file a complaint proving:
that the domain name is identical or confusingly similar to a trademark in which it has rights;
the current domain name holder has no rights or legitimate interests in the domain name; and
the owner registered and used the domain in bad faith.
Advice of intellectual property counsel is prudent when assessing the best course of action in protecting a trademark owner’s rights to certain domain names.
About the Firm
Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX. The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights. The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution. Additional information about the IP law firm and its IP law attorneys may be found at www.klemchuk.com.
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