Screening content: the added value of scanning for logos
A guest blog from our partner ICTRecht
Anyone who wants to know what the basic building blocks of a website are will find some good explanations online. Many liken a website to a house, where the site content is like the fabric of the building, while the domain name is like the address. Sadly, both content and domain name can be used for harmful or fraudulent purposes. SIDN's BrandGuard service has always detected harmful domain names, but has recently been upgraded to support the scanning of .nl homepages for (unauthorised) use of logos. Lookalike domain names and websites with unauthorised logos are both likely to require a response from the brand owner. However, the nature of that response will normally differ.
Permissible content can be unlawful in combination with a particular domain name
Most websites' content is legally permissible. That's the case, for example, with a purely informative website featuring the owner's company details and nothing that infringes anyone else's intellectual property rights. Generally speaking, such websites don't upset anyone or provide grounds for legal proceedings.
However, if otherwise permissible content is used in combination with a domain name that matches someone else's brand name or trading name, the picture is liable to change. In such cases, the website is likely to benefit from the reputation of the brand – by attracting more traffic, for example. A good example would be a company selling various brands of lawnmower and using a domain name that incorporates the name of the market-leading manufacturer.
In such a case, the owner of the leading brand could take action against the registrant of the lookalike domain name. However, the brand owner is unlikely to get assistance from the hosting service provider. Despite being partially responsible in law for the content of hosted websites, a hosting firm will not generally take down legitimate content. In circumstances like that, time and cost-efficient domain name procedures such as the UDRP usually offer the best hope of relief. Such relief will typically consist of an independent expert arbiter ruling that the domain name in question should be transferred to the brand owner.
Screening content
New functionality was recently added to the SIDN BrandGuard service, which can now monitor not only domain name registrations, but also website content for potential abuses. Content scans can be performed on all websites with .nl domain names, not only those with suspect domain names. The scan involves checking each site's homepage for use of the BrandGuard subscriber's logo. Identifying websites that use a logo without authorisation is important, because such use may be associated with fraudulent activities. For example, the national government's logo is sometimes used by criminals to give phishing sites the look and feel of genuine government sites. Similarly, scammers will use accreditation logos to make misleading websites or fake products appear trustworthy. (See also https://www.sidnlabs.nl/nieuws-en-blogs/malafide-nl-websites-opsporen-met-logodetectie-in-de-praktijk).
Legal analysis
Automated detections made by SIDN BrandGuard will usually require human assessment and follow-up. Occasionally, unauthorised use of a logo will be permissible, because it is covered by the rules on the limitation of brand rights. In most cases, however, if a logo appears on a website that is unknown to the brand owner, its use will be unlawful, since the site's owner has no legitimate grounds putting the logo there.
In such cases, the human assessor will have to determine whether the website in question is clearly being used for an illegal purpose, such as phishing or selling counterfeit goods. If that is the case, the hosting service provider can be contacted. The service provider may be summonsed to take down the website, and can be held liable for any failure to do so. Under appropriate circumstances, the hosting service provider can also be asked to provide the brand owner with the registrant's name and contact details. However, jurisprudence on that point is still taking shape.
If a website has both illegal content and a domain name that incorporates a brand name, the grounds for (UDRP) proceedings are even stronger. In such circumstances, it is very difficult to make a good defence case.
Conclusion
The added value of screening websites for logos is that more fraudulent websites are likely to be detected. If the content associated with unauthorised logo use is illegal, that strengthens the hand of the brand owner when calling on the hosting service provider to intervene, or when taking legal action over the domain name.
For the legal pursuit of illegal domain names and content, SIDN works with ICTRecht, a law firm with extensive experience of notice-and-take-down (NTD) requests, the sourcing of registrants' names and contact details, and domain name-related legal proceedings. In many cases, ICTRecht can quickly and at no charge assess what course of action is likely to offer the best prospects of success.
