3 things to do if your domain is hijacked

(Editor’s note: Curtis Smolar is a partner at Ropers Majeski Kohn & Bentley. He submitted this column to VentureBeat.)

Your company’s brand is its identity. And, generally, having a Web presence is critical.

It’s also valuable – and cybersquatters know this. That’s why there’s such a bustling practice in people buying the “.net,” “.biz” and other non-“.com” extensions of company names. Typically, these folks demand a lot of money before they’re willing to surrender the domain that you should already own.   Luckily there are a few things you can do.

Cease and Desist Letter – The first step is to ask the other side to give back your domain name, demand that they stop using it and assign it to your company. Give them a deadline so that you know whether or not they are just ignoring you.  Once it passes, you’ve got two choices: Go through the ICANN Uniform Dispute Process (UDRP) or file a lawsuit.

ICANN Uniform Dispute Resolution Process – The UDRP was created by created by Internet Company of Assigned Names and Numbers (ICANN) to be a quicker and cheaper solution for rights holders.  The savings can be significant. The cost is often less than one-third to one-half of the cost of going to in court.  It’s also infinitely more convenient if the other party lives in another country.

• You’ll need to demonstrate four things in an UDRP:
• You are a rights holder.
• The domain name is identical or confusingly similar to a trademark or service mark you own.
• The squatter has no rights or legitimate interests in respect of the domain name.
• The domain name has been registered and is being used in bad faith.

ICANN then implements a multi-step process to determine whether the registration was done in bad faith.  If it finds that to be the case, the registration may be taken from the squatter and given it to the rightful owner.

One important note: The UDRP is subject to review by courts – and some U.S. judges have reversed the findings of the UDRP process.

The Anti-Cybersquatting Consumer Protection Act – In the late 90s, there was an wave of cybersquatters who were intentionally registering famous brand names and holding the domain names hostage.  This started to become a big problem for bigger companies, which began lobbying Congress for a solution.  The result was the Anti-Cybersquatting Consumer Protection Act (ACPA).

Enacted in 1999, this established a cause of action for registering, trafficking in, or using a domain name confusingly similar to, or dilutive of, a trademark or personal name. To enforce the ACPA, however, one must file a lawsuit in a United States court and that can be extremely expensive.

ACPA has limitations, especially where the infringer is living on another continent.  Additionally, there are critics who say the law may infringe on free speech if it is used incorrectly.

Startup owners: Got a legal question about your business? Submit it in the comments below or email Curtis directly. It could end up in an upcoming “Ask the Attorney” column.

Disclaimer: This “Ask the Attorney” post discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  VentureBeat, the author and the author’s firm expressly disclaim all liability in respect of any actions taken or not taken based on any contents of this post.