When you receive a Written Warning from a company or an individual, threatening you or your company with law suit alleging that your Domain Name is the same or similar to its Domain Name, or that your Domain Name is infringing on its TRADEMARK, HOW CAN YOU BE SURE YOU’RE SAFE; AND HOW SHOULD YOU HANDLE SUCH WARNINGS?
Straight to the point, DOMAIN NAME is your WEBSITE ADDRESS. It is the NAME that brings traffic to your website.
Domain Name is like human name (with the usual First Name and Surname) but in case of Domain Name, there is Second Level Domain (SLD) and Top Level Domain (TLD).
If you look up at the address bar of the web browser as you read this post on this site, you’d see “lawsalvatores.com” in the address bar. The compound word “lawsalvatores” is the SLD while “.com” meaning commercial is the TLD.
Let me also note that TLDs are further divided into two categories – the Generic Top‐Level Domains (gTLDs) e.g. “.com”, “.net”, “.org” etc. and Country Code Top‐Level Domains (ccTLDs) e.g. “.ng” (for Nigeria), “.uk”, “.us”, etc.
TRADEMARK on the other hand, is a mark that distinguishes your products/services from that of others. “Coca’cola”, “Facebook”, “MTN”, “Indomie” are all Trademarks. You could see that Trademarks like “Facebook”, “Indomie” are also registered as Domain Name – facebook.com; indomie.com. Yes! That’s the issue of concern here.
Domain Name and Trademark can be said to perform similar function in that they direct customers/clients to your products/services in the marketplace.
Usually, webhosting companies, say Bluehost, would not ordinarily allow the registration of a domain name that is already in use, these instances however do occur as there are many web hosting companies that host and manage websites.
Issues of this nature are usually settled by administrative procedure provided by the World Intellectual Property Organisation (WIPO). Nigeria is party to WIPO treaties, WIPO Arbitration & Mediation Center (WIPO Centre) handles domain name disputes especially where such domain name is a registered Trademark.
Issues on Domain Names and as to whether a Domain Name infringes on a Trademark are generally administered by Internet Corporation for Assigned Names and Numbers (ICANN) and WIPO Centre is its first Accredited Service Provider.
WIPO Center in collaboration with member States and with the approval of ICAAN came up with the Uniform Domain Name Dispute Resolution Policy (UDRP) Rules as the legal framework for resolution of disputes on these subjects.
This is the administrative procedure I am referring to.
If for instance, a US company’s Domain Name is registered in the US as Trademark, it can only enjoy protection within the United States but if the Domain Name is also registered with ICANN accredited Internet registrars, international administrative solution would be sought through ICANN procedure not usually by law suit.
This is so because among the challenges on Intellectual Property (IP) rights in the digital economy and international trade are problems of Jurisdiction and Enforcement.
Again, UDRP Rules is up-to-date and addresses all-encompassing issues on the subject such as cybersquatting, etc. More so, WIPO Center Panel members are experts and could go as far as possible in the cyberspace to comprehensively resolve domain name disputes.
This is not to say however that cases on these subjects are not handled by courts of competent jurisdiction.
Thus when such Written Warning is received or you perceive an infringement on your domain name and wish to save your business brand and revenue, just contact your IP Attorney without further ado!
And whenever you receive email on issues with your Domain Name or there arises a need to file Complaint at WIPO Center, you need to consult an IP Attorney for appropriate legal advice.
NOW to the question of what to do to protect yourself from such occurrence.
FIRST, the fact that your Domain Name is available or registrable on any web hosting site (Domain Name Registrar) does not make it legally safe. It is therefore very important to make informed choice when selecting a Domain Name.
That is why these days, we advise clients at the point of registration of Corporate Name to consider Trademark and Domain Name especially where the business of the company would require such uniformity or branding.
We also advise that clients register their Domain Name with ICANN Accredited Internet Registrars.
SECONDLY, if you have your Domain Name in use already ensure that it is as well registered as TRADEMARK not only as a sword but also as a shield.
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