Just when finally you start to make money with your online business, you get it confiscated from you in less than 24 hours. You ask yourself why now and not a year ago? Well a year ago you were nowhere to be found, and you had no money, so why bother going after you?
Just as you struggle and grow your business, your enemy is watching you and when the time comes, he hits you right where it hurts.
One of our clients already fell victim to this and I feel obligated to warn you that you may be next.
What is even more devastating that not only can they take your domain name and your business, but they can also fine you tens of thousands of dollars and bankrupt you altogether.
As the economy gets tighter and new anti-piracy internet laws are passed (SOPA/PIPA) this is only going to get worse. This is a very serious problem that can be very devastating, frustrating and painful. If you are making money with your business, then you should take this very seriously. Read every word I am about to say and take action today to protect your business from the vultures.
ISSUE 1: DMCA / TRADEMARK INFRINGEMENT
If you have a domain name, it may be infringing on someone elses trademark name. For example lets say you sell Ford F-150 accessories and your domain name is BobsF150Store.com. Since Ford holds the trademark for F150, they can file a lawsuit against you and take your BobF150Store domain name. In result they can forbid you from ever selling products for the F150 and fine you for the profits you made while you were in business.
Usually the Court Case that is filled will state that you infringe on the following:
The word F150 was in the domain name
The site portrayed to selling Ford F150 parts, which confirms the intent to infringe on their trademark name
The links on the site led to Ford F150 related products, which may or may not be licensed by Ford
The word F150 in the domain name leads to confusion and misleads the visitors into believing the site is affiliated with Ford when it is really not.
Now this is not only Ford. You might have a store called CoopsCustoms, and Coops may be trademarked by another automotive related company who will file the same kind of lawsuit against you.
This is real and this is a big threat to your business. You can read more about it from:
POSSIBLE SOLUTIONS (I AM NOT AN ATTORNEY AND THIS IS ONLY MY OPINION ON WHAT YOU CAN DO, I SUGGEST THAT IF YOU HAVE AN ATTORNEY, YOU CONSULT WITH THEM ABOUT THESE AND OTHER POSSIBLE SOLUTIONS)
First you want to see if youre infringing on a trademark by SEARCHING THE TRADEMARK WEBSITE. If you need a professional to conduct the search for you, you can consider hiring Legal Zoom Trademark Search, it will cost much less than an attorney.
If you havent started your business yet, obviously now would be a good time to pick a name that is not infringing on any trademark. If in conclusion you are infringing on a trademark here are the options that you can consider.
Note that only one trademark is allowed per specific industry. For example if Ford owns a trademark for F150, then you cant create another automobile called F150. But if you have medical supply company and you want to name that company F150 you are allowed to do it. Each Trademark registration will explain what industry this trademark can be used for.
Avoid intent to commit infringement, avoid intent to have a case that you have a relationship with the trademarked company. For example, if your website name is BobF150Store.com, avoid using the Ford F150 Truck in your website graphics including installed examples of products. Avoid using Ford logos, and minimize the word Ford or F150 on product title and descriptions. You may also want to sell products not related to Ford F150 to create a case that you are selling all kinds of products not just ones for Ford F150.
AVOID USING THE TRADEMARK COMPANY LOGO ANYWHERE. INCLUDING INSTALLED EXAMPLES. THIS DOES NOT MEAN YOU CANT HAVE AN IMAGE OF THE VEHICLE, THIS SIMPLY MEANS YOU HAVE TO BLUR OUT THE LOGO ON THAT VEHICLE OR REMOVE IT.
AVOID CREATING A DISCLAIMER SAYING THAT YOU ARE NOT AFFILIATED WITH THE TRADEMARK COMPANY. This is equivalent to saying I wasnt going to use this illegal firearm that is in my possession even though I have it in my pocket. This will simply reinforces the trademark company that you are infringing and makes their case stronger.
WHAT SHOULD YOU DO IMMEDIATELY
Create a professional logo with your company name that will be different from the trademark company.
Make sure that your logo is not infringing on other logos that you may not be aware of. A Legal Zoom Trademark Search, would solve those problems for you.
File for a Trademark for your name, and do not indicate that you are selling the infringing trademarks company products, but simply products online. You can consider using Legal Zoom Trademark Registration, they only charge $169 plus the government filing fee.
If your logo gets rejected for whatever reason, and you will not want to appeal the rejection. You will have to consider renaming your domain or asking for a licensing agreement from the trademarked company that you are infringing on per the rejection letter.
ISSUE 2: COPYRIGHT INFRINGEMENT OF GRAPHICS/PHOTOS
Unless you created your own images for your website (photos, graphics), the chances are you are using someone elses images without permission and/or without a license. Even if the web designer did the graphics for you it does not mean youre covered. The designer could have taken the images from Google images which he had no permission for or have a license to use it for commercial purposes. Even if the designer made his own images, he has to give you a written license that he grants you a personal, exclusive, transferable, right to use of this image. If you do not have this, a real world example would be equivalent to saying my friend gave me a gun and I committed a murder, but since this is not my gun, I am not guilty.
You certainly are guilty if you are using non-licensed images and you can be prosecuted for up to $5,000 per image infringement or $100,000 in statutory damages.
The worst that you can do is use good looking images from Google Images for commercial purposes. Companies like iStockphoto purposely publish good looking images that are picked up by Google Images. They use it as bait for website owners to try and use it for commercial purposes. What they are doing is equivalent to leaving a brand new BMW in the Ghetto with the windows open and keys in the ignition, but the crook doesnt know that the BMW has a GPS tracker on it and the police are watching it like a hawk.
iStockphoto has search spiders that go through all the websites online trying to find traces of an image being used for commercial purposes without a license. They specifically embed a transparent watermark on the images that are designed to be used as bait, and if they find that invisible watermark on the image on your website, then they file a lawsuit and demand $5,000 fine per image infringement.
What if you cant afford that? Well tough luck, theyll take your online business, and put a judgment on your name. You should have been thinking about that before the law suit theyll say, it would have only cost you $20 for that same image.
WHAT SHOULD YOU DO IMMEDIATELY
I personally use Shutterstock.com and I have a subscription to download up to 25 images per day with a commercial license. If you would like to become a user on my Shutterstock account (which will be cheaper if you buy your own subscription), then Email me directly (I will charge $50/mo and you can get up to 25 images per month).
If you use my account or get your own, you can use the images for your whole website and use them for ongoing promotions such as creating rotating promotional banners without worrying about copyright infringement because those are legally licensed by Shutter Stock
ISSUE 3: SOPA/PIPA and THE WAR ON THE INTERNET
Remember that SOPA/PIPA I and the whole internet were ravening about? Well if that laws passes, a single infringement which I am sure everyone is in some way or form infringing on something, can result in having your domain taken away WITHOUT a warning, court or trial. In some cases you can also face 5 years in prison.
If you are in the eCommerce you should be very alert about ANTI PIRACY BILLS that try to pass under the radar.
UPDATE: Some clients asked for my opinion if they should shut down the business to avoid infringement. I suggest that you do the trademark search first and consult with an attorney. Their are ways to minimize the risk where no one will go after you.
However if you want to take no risks, you can always start a new domain. Do a 301 REDIRECT from your old domain to the new one, and notify Google of the website address change (they have this option in Google Webmaster Tools).
This will allow you to slowly migrate the new store with the products from the old store and redirect the traffic from the old store to the new store without rushing.