02 Jul Cybersquatting in Nigeria
What is Cybersquatting in Nigeria?
A domain name is a unique name that identifies a website. For example, the domain name of this website is ‘lawpadi.com’. Each website has a domain name, and this serves as the address which is used to access it. Cybersquatting refers to a situation where an individual registers a domain name in bad faith and with the intention to profit from the goodwill of someone else’s brand/trademark or company name. For example where a person registers a domain name that doesn’t belong to him/her and then attempts to sell it to the owner of the trademark.
Cybersquatting also includes those instances where the individual registers a domain name similar to the domain name of another company with typographical errors. This is called typosquatting. For instance, if someone was to register ‘lawpady.com’, and do the same thing we are doing on this website, that would be typosquatting. What typosquatters try to achieve is that when someone puts in the domain name of the original brand owner with a spelling error, the typosquatter gets a benefit because the person is sent to their own website.
So, who exactly are victims of cybersquatting? Just businesses? Well, not exactly…anyone can (and have been) victims of cybersquatters, especially people in the public eye like celebrities or politicians. It happens to businesses, celebrities, and politicians. Some famous cases of cyberquatting include – eBay, Jennifer Lopez, Donald Trump, Konga, and Linda Ikeji.
What to do if you are victim of cybersquatting
So, the question then is what do you do if you are a victim of cybersquatting? Some people who cybersquat on your domain name might not necessarily be doing it because they want to take an unfair benefit of your brand and trademark. Sometimes it might just be pure coincidence, so the first step should be to contact them and let them know that they are infringing on your trademark and brand, and ask them to either discontinue using the domain name or transfer the domain name to you. The most effective way to do this is to hire a lawyer to write a cease and desist letter.
If the cease and desist letter does not work (you should wait for at least a couple of weeks for a response from the cybersquatter), then you should think about bringing formal proceedings. The nature of the proceedings you will bring will depend on several factors, and this will be discussed below.
Firstly, you should know that all domain names have a domain suffix, such as .com, .gov, or .org. The domain suffix helps identify the type of website the domain name represents. For example, “.com” domain names are typically used by commercial website, while “.gov” websites are often used by government departments and agencies. The first-level set of domain names are the top-level domains (TLDs), including the generic top-level domains (gTLDs), such as the prominent domains ‘.com, .info, .net, .edu, and .org’, and the country code top-level domains (ccTLDs) – for example ‘.ng, .uk, and .za’.
Bring an action at ICANN
If your website is a gTLD, then you can bring an action under the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN uses the Uniform Domain Name Dispute Resolution Policy (UDRP). The UDRP is an online dispute resolution mechanism for domain disputes, and under it ICANN can cancel an improperly registered domain name or order a losing party to transfer the domain name to the winning party. If you believe that someone is cybersquatting on a domain name that rightfully should be yours, bringing an action under the UDRP may be a cheap and easy alternative to a lawsuit.
The UDRP provides that for a Complainant to recover a domain name through the UDRP process. In order to bring a valid complaint, the complainant must firstly show, that the domain name being complained about is identical or confusingly similar to a trademark or service mark in which you have rights. Therefore, you need to have a registered Trademark of the brand. So, it is imperative that as a business you have registered a trademark. You can find out more about how to register a trademark here, and the benefits of registering a trademark here. The protection is for domain names that are identical or similar, and therefore typosquatting would be captured in this as well.
The next thing you will need to do is prove that the alleged cybersquatter has no rights or legitimate interest in respect of the domain name; and finally, you will need to prove that the domain name has been registered and is being used in bad faith. All of these elements must be established, and if the complainant prevails, the domain name will be cancelled or transferred to the complainant. However, financial remedies are not available under the UDRP.
Bring an action at NIRA
If your website is a ccTLD, and ends with ‘.ng’, then you can bring an action at Nigeria Internet Registration Association (NiRA). It has its own Dispute Resolution Policy, and this policy covers how to make complaints for cybersquatting. The policy is almost identical to the UDRP, and the complainant needs to prove the same things as under the UNDRP. As with the UDRP, an action brought under NIRA does not have any financial remedies available.
Bring an action under the Cybercrime Act 2015
In 2015, the Cybercrime Act was passed in Nigeria. The Nigerian Cybercrime Act 2015 is a novel piece of legislation, this is because it is the first Nigerian Federal Law which was created specifically to deal with the criminal threats and issues we face in the Digital Age. Under Section 25 of the Cybercrime Act 2015, cybersquatting is prohibited and is in fact made a criminal offence. Cybersquatting is when someone intentionally takes or use of a name, business name, trademark, domain name or other word or phrase registered, owned or in use by any individual, body corporate or belonging to either the Federal, State or Local Governments in Nigeria, on the internet or any other computer network, without authority or right, and for the purpose of interfering with their use by the owner, registrant or legitimate prior user. Cybersquatters are liable on conviction to imprisonment for a term of not more than 2 years or a fine of not more than N5,000,000.00 or to both fine and imprisonment.
Apart from the fact that this is a criminal offence, an important thing to note here is that to make a complaint, you do not necessarily have to be in possession of a trademark. If you have a registered business name of that domain name, then it appears you will be covered as a complainant. The remedy available to the complainant is that the court may make an order directing the offender to relinquish such registered name, mark, trademark, domain name, or other word or phrase to the rightful owner (the complainant).
The only issue with bringing an action under the Cybercrime Act is that actions can only be brought by the law enforcement agency charged with implementing the Act (this is not specified in the Act, but since the implementation of the Act most complaints have been dealt with by the Police. Therefore, a complainant would have to file a complaint with the police before an action can be commenced.
It is also important to note is that there is no financial remedy available to the complainant under the Cybercrime Act.
Bring an action in Tort
If you are a complaining about cybersquatting in Nigeria, and you are the legitimate owner of the domain name being complained about, then it very likely that you will be covered by using any of the actions discussed above. However, if you want to exercise some further right which is not covered above, for example if the cybersquatter used the domain name to defame you through a gripe website, apart from bringing an action under the UDRP above, you could also sue the person for defamation. Defamation is a tort where statements published have caused serious damage to the reputation of the claimant.
Another potential remedy is in the tort of passing off. Passing off protects the goodwill of a trader from a misrepresentation. The law of passing off prevents one trader from misrepresenting goods or services as being the goods and services of another, and also prevents a trader from holding out his or her goods or services as having some association or connection with another when this is not true. An example would be where an individual registers – ‘kongar.com’ (which is similar sounding to konga.com) and then operates an e-commerce platform as well. To bring an action for passing off, the claimant must show that he/she has a goodwill and reputation in the domain name, that the 3rd party has made false representations which have or are likely to lead the public to be confused that his goods and services are the those of the owner of the unregistered mark, or that his goods or services are associated with or somehow connected to the business of the owner of the unregistered mark; and, that damage resulting from such misrepresentations.
Bringing an action in tort is much more difficult and more expensive than bringing an action via the UDRP or at the NIRA, or even making a complaint under the Cybercrime Act….so why would anyone consider it? One reason…money. This is the only process that affords the complainant any sort of financial remedy, as a complainant you can be awarded substantial compensation for damage done to your brand if you bring any for defamation, and compensation for profits lost if you bring an action for passing off.
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