Cybersquatting refers to the practice of registering, trafficking in, or using a domain name with the intent of profiting from the goodwill of a trademark or brand owned by someone else. Cybersquatters typically target domain names that are identical or confusingly similar to the names of businesses, organisations, or individuals (such as well-known trademarks or personal names), hoping to sell the domain at a profit to the rightful owner.
Cybersquatting can involve:
1. Domain name hoarding: Registering domains with the intention of selling them to the trademark owner at a high price.
2. Typo-squatting: Registering misspelled versions of popular domain names to capture web traffic (e.g., "gooogle.co.uk").
3. Identity theft: Using domain names similar to legitimate ones to deceive users, often to impersonate businesses or individuals.
Laws on Cybersquatting in the UK
Cybersquatting in the UK is addressed primarily through trademark law, the common law tort of passing off, and domain name dispute resolution procedures. Unlike the United States, where specific anti-cybersquatting laws exist, UK legal recourse against cybersquatters is largely based on broader intellectual property and common law principles.
1. Trade Marks Act 1994
Under the Trade Marks Act 1994, trademark holders can bring claims against cybersquatters if they can demonstrate that:
- The domain name is identical or confusingly similar to a registered trademark.
- The use of the domain name causes a likelihood of confusion or takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the trademark (even if the domain name is not used in connection with the same goods or services).
Trademark holders can seek injunctions to stop the use of the domain, damages for any losses, and transfer of the domain name from the cybersquatter.
2. Passing Off
If the trademark is not registered, a claim can be made under the common law tort of passing off. Passing off protects businesses from someone using their goodwill in a misleading manner. To succeed, the claimant must show:
- Goodwill: The business has established a reputation in its name or mark.
- Misrepresentation: The cybersquatter's use of a similar domain name misleads the public into believing there is an association with the claimant's business.
- Damage: The business suffers or is likely to suffer damage as a result of the cybersquatter’s actions.
3. Nominet's Dispute Resolution Service (DRS)
For .uk domain names, disputes involving cybersquatting can be handled through Nominet’s Dispute Resolution Service (DRS). Nominet is the registry responsible for .uk domains, and its DRS offers a quicker and less expensive alternative to court action. Similar to the Uniform Domain-Name Dispute-Resolution Policy (UDRP) used for generic top-level domains (gTLDs), Nominet’s DRS resolves disputes based on whether:
- The complainant has rights in a name or mark, and
- The domain name is an abusive registration (i.e., registered or used in bad faith).
The DRS process can lead to the transfer or cancellation of the domain name, but it does not provide for monetary damages.
4. European Union Law (for EU Trade Marks)
Although the UK has left the EU, EU trademark law (in particular, Regulation (EU) No 2017/1001 on the European Union Trade Mark) still applies to EU trademarks. If a cybersquatter registers a domain that is identical or confusingly similar to an EU trademark, the trademark holder can take action either through European courts or through the UDRP process for gTLDs.
Summary
In the UK, cybersquatting is addressed through a combination of trademark law, passing off, and domain-specific dispute resolution mechanisms such as Nominet’s DRS for .uk domains. Remedies include the transfer or cancellation of the domain name and potential damages in cases of trademark infringement or passing off. The exact course of action depends on whether the affected party holds a registered trademark and the nature of the cybersquatter’s conduct.