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Online Enforcement of IP

Online infringement of Intellectual Property

Online infringement takes many forms, from the sale of counterfeit or infringing products via the internet, to copying domain names and website content.

The internet today has efficiently created a wide range of opportunities for business firms, companies, organizations, and individuals to communicate their brand messages and reach their target audience. However, keeping aside the internet’s openness, versatility, and global reach, its unregulated character has created a fertile ground for infringement of copyrighted content, trademarked brand names and logos, and registered designs. In the broadest sense, online IP infringement covers the sale of counterfeit products and services through the Internet and a variety of other activities, including cybersquatting, phishing, SEO (search engine optimization) abuse, and content piracy.

Forms of Intellectual Property

In most countries, there are four primary types of intellectual property (IP) that can be legally protected, these include patents, trademarks, copyrights, and trade secrets. Intellectual property infringement is the violation of a protected intellectual property right.  Intellectual property rights are the rights given to an inventor or creator for their original works.  This means that infringement is violating the right protected by a patent, trademark, or copyright.  Patents, trademarks, or copyright registrations give the inventor or creator the right to initiate legal proceedings against infringers, collect damages and stop the infringing activity.

Why online IP enforcement is required

Considering that we live in a digital age, it is necessary to have a standard method or process of enforcement of IP rights online, that can be easily adapted by companies, irrespective of their territorial jurisdiction. This is because, companies now find it difficult to constantly monitor online IP infringement and can no longer depend on conventional legal remedies for dealing with infringement on the internet. It is therefore imperative for companies to build a proactive and multi-faceted strategy for copyright and trademark protection, which must offer effective methods of adapting to the challenges of the online environment. This especially important for companies whose business primarily depends on publishing content online. Some forms of intellectual property may only give the owners exclusive rights in the country where the IP is registered, and may require any extra-territorial rights to be independently proved or recognised by a court of law.

However, it becomes difficult to implement these principles online, as it is quite easy to maintain an anonymous identity with the help of offshore internet servers. Consequently, the infringers with this kind of virtual presence can generate huge profits. The difficulties associated with the conventional legal approach leading to successful online IP infringement further includes the aspect of lack of uniformity in the legal landscape. Varying IP laws and regulations in different jurisdictions make it arduous to navigate the legal landscape.

Another important consideration is identifying which individual or entity is liable for the infringement, and taking action accordingly. Infringing content may be published on individual websites of news publications or independent sellers, or on individual blogs, in which case identifying the infringer may be easier. On the other hand, infringing content may also be published on media-sharing sites such as YouTube or Pinterest, social media networks such as Twitter or Instagram, and seller platforms such as Amazon or an app store. Infringing content may also be indexed in search engines such as Google, making such content easy to find and popularise over the original content, thereby causing monetary losses to the IP owner.

Takedown requests

A take-down request, also called a notice and take down request, is a procedure for asking an Internet Service Provider (ISP) or search engine to remove or disable access to illegal, irrelevant or outdated information. Take-down requests may be issued for content that infringes on copyrights, trademarks, patents, privacy rights or personality rights.

Most countries have laws requiring ISPs or intermediaries to provide clear procedures for IP owners to flag content, submit a form or email, and provide the necessary evidence or supporting information for the takedown request. These laws also set a time limit, in some cases, within which the intermediary is required to respond to such requests or take action against the content being reported by the IP owner.

General process followed to take down online content

The general process requires intermediaries to publish terms of use and a user agreement, stating what type of content is illegal and subject to take down action on their respective platforms. IP owners who report or request the takedown of certa