If you hire a dozen marketing professionals to help you with your “Internet presence” you will get a dozen different opinions about exactly how to do that. But they will probably all agree on two things: Web and social media marketing is difficult, and “reputation” matters. The most effective marketing is highly targeted and personal—through company websites, blog postings, Facebook pages, Twitter streams and the like. Such marketing works precisely because the recipients have “opted in;” they have made the decision to follow the brand or at least check up on it periodically, and thus established themselves as interested potential customers. In that world, brand protection is of paramount importance. If the consumer is misled as to the source of the information, the brand will suffer and so will the consumer. But the conventional wisdom has been that the trademark laws, the traditional tools of brand protection, lack force in cyberspace—that the Internet is the “Wild West.”
In fact, that is not the case. The traditional trademark laws give strong protection to mark-holders against the infringing use of their marks on the Internet, if that use is confusing to consumers. In addition, Congress has passed a law—the Anticybersquatting Consumer Protection Act (ACPA)1—designed to address the proliferation of scam websites whose addresses are themselves confusing. That law has some interesting features, and a series of recent decisions in the Eastern District of New York against a repeat-offending cybersquatter offers a good opportunity to examine it and the other tools available to businesses that need to protect their brands.
