The world of ‘mummy bloggers’ is perhaps an unusual setting for a bitter legal fight – but that is exactly where one broke out last week.
One popular blog by a Gold Coast mum, The Organised Housewife, discovered that a slightly different domain name was redirecting traffic to a competitor.
Her real website – theorganisedhousewife.com.au – was being undermined by someone who had purchased the organisedhousewife.com.au domain name. It’s easy to see how people could get the web address wrong, and how the real site might miss out on readers who intended to visit.
Unfortunately, this situation is not unique. Disputes over domain names – or slight variations on domain names – are very common.
Today, “organisedhousewife.com.au” redirects to the genuine The Organised Housewife website. But this has come at a cost (as well as plenty of drama and no doubt, stress), which could have been avoided.
There are ways that the law helps to protect you from others who try to wrongly associate themselves with you or your business.
For example, there are misleading and deceptive conduct provisions under the Australian Consumer Law (ACL). If a reasonable person is likely to be misled by a representation that someone makes in the course of business, the ACL contains a wide variety of remedies to deal with that situation.
If you have registered your business name as a trade mark, then use of a substantially identical or deceptively similar trade mark by another person or entity in relation to similar goods or services may amount to trade mark infringement. However, there would need to be something that associated the domain name as a trade mark with the content of the web page.
Then there is passing off. Generally, a passing off situation involves someone making a representation that their products or services are, in some way, associated or connected with another – when that is not the case.
Passing off doesn’t require an intention to deceive, so it can protect you even against innocent situations where it’s reasonably foreseeable that your business reputation or goodwill is hurt. This is more useful as a legal tool when your website and reputation is already well established.
How to play defence
A major problem for anyone starting a blog or online business is lack of awareness about potential risks.
There are so many immediate things to worry about at the start – like setting up a website and creating content and promoting it – that thoughts of external risks are often put off to one side.
Simple modesty, or low expectations about how many people will visit the website, will often lead to a “just the basics” attitude. Finances at the start can be tight as well, and some bloggers are put off by the thought of investing in multiple domain names for just the one website.
Alternatively, it may be just good faith and trust that other people in your sector or industry wouldn’t do something underhanded.
Whatever the reason, registering variations on the domain name for your business early can save a lot of trouble down the road.
As we explained in a previous post, if your domain name is wesellwidgets.com.au, you should also consider registering domain names such as wesellwidgets.net.au, wesellwidgets.net and wesellwidgets.com. This defence prevents a third party from registering those domain names and possibly infringing upon your intellectual property rights, whether inadvertently or not.
If a domain name that you take steps to secure is already taken, then you should consider what impact this may have upon your business, and investigate whether you may be infringing upon any third party rights.
How to play offence
Even with a strong defensive approach, there can still be problems. Even the most comprehensive defensive strategy cannot secure every domain or name variation.
That means sometimes you have to go on the offensive. You may wish to contact the other party and try to resolve the situation with them.
Failing that, there are official avenues for resolving disputes over domain names via both the Australian Domain Name Administrator (AUDA) for “.com.au” domain names and the World Intellectual Property Organisation (WIPO) for top level domain names like “.com”.
There may also be other claims to consider under the various intellectual property avenues discussed above.
The most important thing when a domain name is contested is to make a decision. Is this hurting your brand or your website enough to assert your rights? If it is, then you have a number of options. But if you’re not prepared to act, get on with business and avoid the temptation of telling the world that your rights may have been infringed upon – this only serves to communicate a clear message that it’s ok to exploit your valuable intellectual property without your consent.
And remember…it’s always best to act early.