DMCA Trademark Infringement: Everything You Need to Know
DMCA trademark infringement allows a copyright owner who finds their material posted online without consent to send a takedown notice to the service provider.3 min read
DMCA trademark infringement refers to the Digital Millennium Copyright Act and allows a copyright owner who finds his or her material posted online without permission to send a takedown notice to the online service provider. Hosts have some protection, or immunity, from being sued for infringement, but they are required to take swift and reasonable action to fix an alleged infringement upon notification. Because they do not want to lose their immunity, if you advise them of ongoing infringement, the host is likely to order the website owner to take down the infringing content, or they will be forced to.
Often, people send DMCA notices for problems that are not really copyright infringements. You cannot copyright a name, a look, or an idea. The DMCA process is not for trademark infringement, either. If you send a DMCA notice in connection with a matter that is not deemed to be an infringement, you might luck out and just not get a response. The worst case scenario is that work is removed and you find yourself facing a lawsuit.
You should only use the DMCA process in situations that are clear-cut copyright infringement. If you have any questions or doubts, it's best to contact an attorney.
Contacting the Host
If you are reporting copyright infringement to a host in the United States, you will need to file a proper DMCA complaint. If you don't, the host is under no obligation to take any action or remove the infringing content. They are not even required to respond. Some hosts will respond to non-DMCA-compliant takedown notices, while others will not. More and more hosts are not responding to incorrect requests, so it's even more important your notice is complete and meets all the necessary requirements prior to sending.
If the host is outside of the United States, stock DMCA letters are not applicable. The DMCA law is a United States law, and therefore, international hosts are not bound by the law. This is applicable to where the host is located, not the infringer. If the country where the host is located is a non-English speaking country, it is likely you won't get a response. You may get lucky if the host is in an EU country, which has the EDEC. This describes their takedown procedure that is used in a majority of European countries. If you are trying to reach a host in Russia or China, you are likely to find almost all hosts are uncooperative, and it may be better to focus your efforts on search engine removal.
Finding the host information can be a challenge in some cases, and a host can't take down material that is not located on their servers. Figuring out the right host can take a combination of sleuthing and tech skills. Don't be too surprised to find that the infringer is taking extra precautions to hide their source. People who do this regularly go to great lengths to keep their host information difficult to find.
Once you have the correct host information, you need to ensure you are submitting the DMCA notice to the right person. Most hosts are large companies, so sending a generic email could get lost. There is no guarantee that the person who receives it will forward it to the right person or department. It helps to do some research to try and track down the right email address, although it may be tricky. If you can find it, it might make the difference between getting a response or not receiving anything.
What Should a Sample DMCA Notice Include?
- The notice must be in writing.
- Look up the host information through a WHOIS lookup.
- It needs to include an electronic or physical signature of someone who is authorized by the copyright owner.
- Identify the copyrighted work that is being infringed upon.
- You must identify the online information that is alleged to be the infringing work. Give enough detail so the host can easily locate the material.
- Provide enough information so the host can contact you (address, email address, telephone number).
- Include a statement that you believe in good faith that the use of the material is not authorized by the copyright holder.
- A declaration that the information in the DMCA notice is correct, and under penalty of perjury, the party making the complaint has the authority to act on behalf of, or is, the copyright owner.
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