Categories
Intellectual Property

Illegal Use of the Internet | Internet Law for Small Business

The huge growth in use of the internet in the last few years has thrown up many issues which should be of concern to website owners and in particular small business owners who market their business online.

There are a wide range of areas in which you can fall foul in your promotion of your business on the internet.

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The potential areas of concern for website owners are extensive and include

  • Direct marketing and email marketing
  • Electronic commerce
  • Defamation
  • Copyright infringement
  • Trade mark infringement
  • Domain name disputes
  • Selling online and European Communities directives and regulations
  • Child pornography
  • Liability of internet service providers
  • Employees use of the internet in the workplace
  • Data protection

Three of the most common and serious areas of potential legal difficulty for website owners, individuals and small businesses include

  • Criminal behaviour on the internet
  • Intellectual property rights infringement
  • Infringement of the privacy rights of individuals.

Some of the most common activities on the internet which are or may be illegal (depending on jurisdiction) include hacking, framing, deep linking, harvesting and infringement of trade mark through the use of meta tags.

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Hacking

Hacking broadly breaking into another’s computer or websites to steal information or cause damage. Whilst it can be difficult to prosecute in Ireland the Criminal Damage Act, 1991 contains a number of provisions to combat hackers.

Sections 2(1), 2(2), 3, 4 and 5(1) criminalises

  • Damage to property with property including “data” and damage including erasing, corrupting and altering data;
  • Threat to damage property even if the attempt to damage is unsuccessful;
  • Possession of anything with the intent to use it to damage property;
  • Unauthorised access with the intent to access “any data”.

 

The Data Protection Acts criminalizes unauthorised access to personal data.

Unlawful use of a computer is criminalized by the section 9(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and other illegal behaviour on the internet is covered by the Copyright and Related Rights Act, 2000 and the Electronic Commerce Act, 2000.

 

Harvesting

Harvesting is the activity of the collection of email addresses for spamming purposes and taking of information from databases of third parties without the latter’s consent.

Harvesting is criminalized by the Data Protection Acts 1998 and 2003 and possibly also by the Criminal Damage Act, 1991 and the Copyright and Related Rights Act, 2000.

Deep Linking

Deep linking to other websites can be unlawful in certain circumstances where those links infringe the rights of the owner of the website to which the link goes. (See Shetland Times Limited v Dr. Johnathan Willis [1997])

It is also possible that a simple link to another website which contains a registered trade mark term can be a breach of the intellectual property rights of the site to which you link. Playboy (www.playboy.com) in the United States won a case in relation to this activity when it discovered a pornographic site linking to it with it’s trade mark term.

Framing

Framing, which is the division of a website into “frames” where a website’s text is displayed next to linked third party material in the same window may be a breach of copyright law.

Meta tag trade mark infringement

Many cases in the United States have been taken successfully where a website owner sues a competitor for the use of a trade mark term as a meta tag in the competitors website, even though such meta tags may not be visible to surfers or visitors to the site.

Conclusion

Clearly there are many potential infringements in the area of internet law with remedies provided for in the statute books. It is an area where you would be well advised to assess your current engagement on the internet to ensure you or your business is not storing up problems for the future.

Categories
Intellectual Property

Domain Names Law | Domain Name Disputes

Domain names, which are intellectual property just like trade marks and other forms of intellectual property, have seen an increase in disputes in the last few years.

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Terms like ccTLD (country code top level domain such as .ie, .co.uk and .fr) and gTLD(generic top level domain such as .com, .net and .org) can be confusing to the small business owner who simply wants to get his business up on the internet and market his/her business to the world via the internet.

Hopefully what follows will help clear up some of the confusion as to what to watch out for in the whole area of domain name registration, domain name disputes and the value of doing a domain name search prior to registration.

 

However domain name disputes are becoming an increasing problem for business with the proliferation of website, eCommerce and new businesses going online and trading on the internet.

 

And infringements occur regularly in the shape of trade mark disputes, cybersquatting and related issues.domain-name-law

 

It is crucial for any business to have a smart commercial strategy regarding their trade marks and domain names.

 

Domain names can usually be registered quickly and inexpensively. Top Level Domain(TLD) is the suffix such as ie or uk or fr-it denotes the country.

 

 

Within TLDs there are 2 sub-categories

 

1. Generic TLDs (gTLD) such as .com,.net,.org,.biz. These domain names do not have to be distinctive and do not indicate geographic origin.

 

2. Country Code TLDs (ccTLD) which are administered by the domain registry of the relevant country; in Ireland this is IE Domain Registry ltd (www.iedr.ie).

 

In Ireland you must display a real and substantive connection with Ireland when applying for a domain name before iedr will approve your application. You may also need to show a connection with the business that you are referring to in your domain name application.(Check out IEDR.ie)

 

Domain name disputes

 

Domain name disputes have been resolved generally in one of 2 ways-either in court or by reference to the alternative dispute resolution procedure provided by ICANN.

 

This body has adopted the UDRP (Uniform Domain Name Dispute Resolution Policy) which apples to generic TLD name disputes.

 

Some country code administrators have incorporated this procedure into their registration agreements.

 

This UDRP procedure has been very successful and has resolved many domain name disputes; however it does not provide for damages and so a company that needs immediate injunctive relief and damages will be advised to head for court rather than the UDRP procedure.

 

Generally the relief provided is simply to have the domain name transferred to the plaintiff.

 

To win relief at the UDRP you will need to show 3 things

 

1. the complainant must show that the name is confusingly similar to the name in which the complainant has rights

2. the existing holder has no legitimate interest or rights in the domain name

3. the complainant must show bad faith on the part of the holder of the domain name.

 

The holder of the domain name can reject the complainant’s case if he could show bona fide use of the name, non commercial use with no intention to profit, evidence that the respondent is known by the domain name.

 

UDRP also recognise the phenomenon of ‘Reverse Domain Name Hijacking’ which is the occasion when the plaintiff uses the policy in bad faith in an attempt to deprive a registered holder of a domain name of that name.

 

In ccTLD disputes the domain name registry require further proofs before they cancel or transfer a domain name.

 

They would need to see some aspect of passing off or trade mark infringement also.

domain-name-disputes

These disputes can be litigated before the appropriate courts as occurred in Jan. 2009 when Sean Dunne, Property Developer went to court in a dispute to obtain D4Hotels.com from John Brennan who had registered the domain name in his own name whilst running D4 hotels group in Ballsbridge.

 

The IEDR introduced a dispute resolution procedure in 2003 in respect of .ie disputes which you can learn more about on their website.

Conclusion

It is clearly impossible to register all domain names and trade marks which they may feel they need to protect their intellectual property.

 

Sometimes it is more cost effective to purchase the name from the ‘offender’ rather than go to court or UDRP.

 

It is important to recognise the difference between trade marks and domain names and it is prudent for a company to register each of their domain names as a trade mark.

 

Because otherwise their domain name could be registered as a trade mark by a 3rd party.