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IP And The Internet: A Growing Need to Police Online Content

The Internet and corresponding online world have radically expanded the landscape Intellectual Property professionals need to investigate when monitoring for possible infringements of their trademarks, brands and other intangible assets. With few barriers to entry, coupled with the ability to operate anonymously, the Internet has rapidly become a significant target for unscrupulous individuals hoping to take advantage of the easily accessible Intellectual Property assets of legitimate businesses.

In the early days of the Internet revolution online bandits concentrated primarily on domain names, frequently registering the famous trademarks of others across numerous top-level domains (.com, .net or .biz) with hopes of financial windfalls via the subsequent transfer and sale of the names back to the legitimate trademark holders. While this practice of cybersquatting has been significantly curbed due to proactive domain name monitoring practices, new and creative forms of Intellectual Property abuse require legal professionals to look beyond domain names and aggressively enforcement strategies in relation to online content.

The very nature of the Internet has made it relatively simple to gain access to sensitive corporate documents, revenue figures, partner channels, copyrights, trademarks and in some cases, highly sensitive trade secrets. In the wrong hands, this readily attainable digital content can be utilized to significantly diminish the value of a company's Intellectual Property portfolio and overall market capitalization. With approximately 6 billion individual web pages, compared to only 32 million generic top-level domains, failing to look beyond traditional domain names will result in missed IP enforcement opportunities that will ultimately impact your company's bottom-line.

Once a decision to monitor online content has been made, whether in-house monitoring using search engines that index online content or a more comprehensive approach utilizing professional brand monitoring firms, one of the biggest surprises to the Intellectual Property community is the massive amount of online abuse that actually takes place. Even more surprising is the fact that these abuses are not limited to traditional web spaces, which can be easily accessed and seen by novice users of the Internet. Many forms of abuse take place via targeted e-mails, in chat rooms and frequently appear in the form of hidden text or html code that cannot be monitored absent the use of sophisticated technology. The list of potential infringements is long and no industry is safe from its impact. Some of the leading forms of online abuse include:

  • Competitive trademark confusion
  • Product counterfeiting/piracy
  • Brand dilution
  • Corporate disparagement/misinformation
  • Traffic diversion
  • Offensive content
  • Visual/content infringement
  • Unauthorized pop-up advertisements
  • False brand affiliation/endorsement

The enormous negative impact any one of these abuses can have on a company's brand value has significantly raised awareness. As a result, a recent trend has developed by which companies are affirmatively taking steps to protect and monitor their digital assets rather than react to unexpected online infringements that would likely have been caught had an online brand protection program been in place. Unfortunately, the price, both in enforcement and technology dollars required to effectively launch a brand protection strategy, are often in short supply. Following are several steps that can be taken to ease the burden of starting to safeguard your company's intellectual property online:

  • Become educated. Utilize people that are experts in this area or
    access resources online via professional organizations including INTA, AIPLA
    and the ABA.
  • Make a plan. Determine who will take responsibility to monitor and
    protect Intellectual Property and create an action plan. Many times both
    marketing and legal budgets can be tapped to fund a comprehensive
    enforcement strategy.
  • Be proactive. Do not wait until your brands or other digital assets
    have been negatively impacted by one of the numerous forms of online abuse
    before you consider the advantages of online content monitoring. Again, it
    is typically much more expensive to react to an infringement than it is to
    proactively minimize their occurrence from the start.
  • Talk to your clients, partners and customers. They are your eyes
    and ears to the digital world and may be aware of infringements that you
    have yet to uncover.
  • Use technology. There is a broad spectrum of information and forms
    of infringements that need to be monitored. Technology is the key to
    accessing and compiling this data efficiently.
  • Register trademarks, copyrights and domain names. Protect your
    brands, trademark and copyrights with formal registrations. Formal
    registrations offer remedies not available via common law rights

Utilizing the above guidelines, your company can be well on its way to establishing sound and effective enforcement policies and procedures needed to maintain and grow the value of one's Intellectual Property portfolio in the digital world.

By Andrew Ehard, Director of Intellectual Property Services
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