What to do if you're the victim of cybersquatting

The advent of the Internet brought with it a whole new vocabulary, a set of "netiquette" rules, and yes, even new causes of action―including one for cybersquatting.

Domain registrar giant Go Daddy was sued by the Academy of Motion Picture Arts and Sciences in May 2010 for alleged rampant cybersquatting, and a big story in the news in July 2010 was of  Tucker Carlson's cybersquatting "prank" on Keith Olbermann by registering KeithOlberman.com  with only one "n" at the end; we'll discuss this matter at greater length later in the article.

But first, some basics.

What is cybersquatting?

Cybersquatting occurs when a person buys, registers, traffics, or otherwise uses a domain name that is confusingly similar to a personal name or trademark. Generally, cybersquatting has been associated with people buying up domain names only to turn around and try to sell them for profit to the business or individual with the trademarked or personal name.

How can I tell if i'm a cybersquatting victim?

If you find a domain you think may be cybersquatting on your rights, click on it. Is there a functioning website, or does the domain look "parked" with no sign of anyone working on it? If it's the latter, you're more likely to have a cybersquatting situation, although it's not guaranteed. It's a good idea to keep your eye on the site for at least a month or two to see if there is any further development.

You may also be dealing with a cybersquatter if the site is composed of all advertisements and/or information related to you or your line of business, which could mean the domain owner is trying to take advantage of your name. Alternately, if a functioning site has nothing to do with you or your line of business, you probably don't have a cybersquatter on your hands. However, if you have a registered trademark, it may be being infringed upon―and that's a whole other issue.

Back to Carlson-Olbermann. Although KeithOlberman.com now says the domain name is for sale, previously those who landed on the site were redirected to Carlson's site, The Daily Caller, where Olbermann was called an "aging cable anchor", among other jabs at him and his show. The fact that the site included information directly about Olbermann would suggest that this is likely an instance of cybersquatting.

Indeed, at least one lawyer quoted in AOL's Daily Finance says Olbermann's case against Carlson would be "open and shut," and Carlson would have a "big problem."

Why is that? Let's talk about what victims of cybersquatting can do.

What can I do if I'm a victim of cybersquatting?

The first thing you should do is look up the domain's owner through a site like WHOIS. If the information isn't protected, you will be able to get at least the e-mail address of the person who has registered the domain. Contact the person to see what is happening with the site in question. It could be that the domain owner would like to sell it to you, and that's certainly a choice you have if the price is right for you.

If you want to fight what you believe is cybersquatting, though, you have two options. The first is to sue under the Anticybersquatting Consumer Protection Act (ACPA), which was passed in 1999. The ACPA creates a cause of action for any trademark holder to sue anyone who "with a bad faith intent to profit from the goodwill of another's trademark, registers, traffics in, or uses a domain name that is identical to, or confusingly similar to, a distinctive mark, or dilutive of a famous mark, without regard to the goods or services of the parties."

The trademark holder must show that the use was in bad faith, the trademark was distinctive, and that the registered domain name is identical or confusingly similar.

If the alleged cybersquatter can show that he purchased the domain name in good faith, this would be an affirmative defense, and the cause of action would fail.

On the other hand, if the court finds in favor of the trademark holder, the domain may be transferred to the trademark holder, and the cybersquatter could face up to $100,000 in fines plus attorney's fees.

Another option is to pursue an action through the Internet Corporation of Assigned Names and Numbers (ICANN), which can be faster and less expensive as you don't need an attorney; note, however, that there are also no monetary damages available.

The ICANN process is actually arbitration, not litigation, brought under the Uniform Domain-Name Dispute-Resolution Policy (UDRP). A complainant must show that the domain was registered in bad faith, that the domain owner has no rights or legitimate interests in the name, and that the name is identical or confusingly similar to the complainant's trademark.

If the complainant wins, the domain will be transferred or canceled upon request.

Protecting yourself against cybersquatting

We may never know for sure whether Olbermann would have a solid case against Carlson under either the ACPA or ICANN as there doesn't seem to be any lawsuit in progress, but the situation shows the potential for cybersquatting.

Although you can't protect yourself or your business from cybersquatting 100% of the time, the best thing you can do to make sure your personal brand or business is as protected as possible is to register a trademark―and get working on your website.