Cybersquatting refers to the registration of internet domain names with the purpose of profiting from its purchase. Typically, the cybersquatter has no association with the domain names they purchase, and only receives a profit when he or she sells the domain name to a business owner trading under that name. Often these business owners feel they have no choice other than buying the domain name from the cybersquatter. If a cybersquatter is using your business name, there are possible causes of action including trade mark infringement, passing off or misappropriation.
Domain Registration
.au Domain Administration Ltd (auDA) are a regulatory body that assist with policy recommendations and industry self-regulation of the domain name space. The Australian government uses auDA to regulate and administer domain names. As a result, they have developed certain policies to process a domain name registration. If you find that an organisation may be cybersquatting, auDA can facilitate the arbitration process to see if the two parties can come to an agreement. This is often less costly than seeking recourse through the litigation options set out below.
Passing Off
Passing off refers to a common law action. The action looks at the way in which one business represents themselves as another business. An action in passing off can prevent another party from using a trade mark or name where you have developed the name’s goodwill and reputation. If a cybersquatter were using your business name, there is a need for proof that they are causing confusion among your customers.
Misappropriation
The Australian Consumer Law (ACL) covers misappropriation. If someone has decided to use your business name to register a domain name, the cybersquatter receives a name identical or similar to your own, which could effectively be considered a misappropriation. The consequence of misappropriation is that it forces the real users of the business name to purchase the domain name for an unreasonable price. If this has happened to your business, you may have a cause of action against the cybersquatter under misappropriation.
Trade Mark Infringement
If your business has a registered trade mark, you may have a cause of action against a cybersquatter based on trade mark infringement. A trade mark provides you with the intellectual property right to use exclusively the sign, which can be a logo or business name. For any business that holds value in their brand name, registering a trade mark is a valuable form of protection. In the context of cybersquatting, you may seek a remedy for trade mark infringement as the cybersquatter could be using the name without your permission.
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