This is the digital era; there is no doubt that technology and the internet govern the world today. Legislators are working hard to maintain current laws and, in certain circumstances, to catch them up. However, as the world has changed and technology has advanced, the perils of technology have given rise to quite inventive sorts of unlawful activity. This article examines brand and trademark infringement and misuse in the digital age, focusing on online fraud and scams. It also makes some recommendations on best practices for prevention and various methods for dealing with such infractions.
It is helpful to remember some context before beginning the analysis and conversation. With the interconnections it contains, the internet lives up to its name. The entanglement of legal issues reflects these relationships. Naturally, a wide range of legal difficulties can develop with such a complex business. This article focuses on those that result from brand misuse in online scams and frauds.
How brands are misused in online scams and frauds
From the standpoint of a brand, the essence of online scams or frauds is quite like that of traditional brand breaches (i.e., violations that occur offline). Over time, brand owners earn the consumer's trust and confidence (a constantly evolving concept). Brand infringement or misuse typically preys on the consumer public's trust and faith in a brand. The magnitude with which digital brand infractions are or may be done makes them noteworthy and different. Furthermore, a brand's reputation may be more relevant in such violations; the higher its reputation, the greater the likelihood of being misused in digital crimes.
Another distinguishing element of such frauds is the difficulty in enforcing against bad actors or infringing parties because they operate in the ether of the internet - zeroing in on their names or the physical location of their operations is nearly impossible. Furthermore, the shapeshifting proclivity of these bad actors allows for regeneration and relapse into infringing acts. Even if one channel of infringement is legally closed, any genuine enforcement effort to completely restrict infringement options is challenging. These elements all lead to digital brand infringement in various ways. The following are some examples of prevalent sorts of such infractions:
- Using brand names in fraudulent domain names: Scammers using a reputable brand or a deceptively or confusingly similar version within a domain name is one of the most typical online frauds. Rather than hosting a functioning website, the major objective of such a domain name is to extort money from legitimate brand owners. Recruitment scams are a common subcategory of this type of fraud, in which the reputation and goodwill of well-known brands are stolen. Infringers (scammers) may construct a false digital identity, using the IP of a legitimate brand to give themselves the appearance of legitimacy and contact unknowing persons with fraudulent job openings.
- Websites that are not legitimate: Fraudulent websites are frequently done with fraudulent domain names (though this is only sometimes the case). Scammers develop a mobile website, frequently preserving the original brand-owners website's fundamental parts or look and feel but supplementing it with fictitious contact information and other information. Descriptions, images, and text on the bogus website are typically taken directly from the websites of legitimate brand owners.
- Impersonations via text or vocal communication: Scammers approach consumers, posing themselves as an official of a business to trick them into paying them large quantities of money.
- Fraudulent mobile applications: Scammers develop mobile mobile applications under respected brands and trademarks, similar to how they create false websites.
What legal actions can you take against scammers?
With the growth of scams, particularly in today's social media-driven climate, the most significant danger for businesses (misrepresented) likely relates to public relations and optics. As a result, brands' first reaction is frequently a public statement distancing themselves from the fraud being perpetrated.
Aside from that, in circumstances where digital brand infringement has already occurred, brand owners can pursue legal action (civil or criminal) and alternative dispute resolution methods. The efficiency of these methods will vary depending on various criteria, but as long as the scam in question has a commercial component, they should be at least somewhat effective.
Many brand owners choose legal enforcement when a domain name integrates a trademark or a deceptively similar variant. The extent of "infringement" stated in the Trade Marks Act may also embrace the more hidden forms of scams, such as textual or vocal impersonation.
Injunctive relief is most usually granted by Indian courts in brand misuse proceedings, particularly at the interim stage. To address the ever-changing nature of digital infractions, Indian courts have recently begun issuing "dynamic" injunctions. Furthermore, if the infringers are proven to be habitual violators, courts may award damages, including exemplary damages.
Internal complaints processes of domain name registrars or e-commerce platforms are frequently used to remove domains, websites, or shop pages.
Although criminal enforcement is theoretically available, there is a great deal of intricacy in deciding what type of enforcement action to pursue and what grounds to claim, including:
Local jurisdiction, cause of action, and the jurisdiction where the infringers hold assets are all issues.
More crucially, criminal enforcement measures in India frequently need extensive physical cooperation and coordination with law enforcement organisations. However, if the facts of an infringement need it, a number of central and state agencies can be notified in such cases.
How should you protect yourself from scammers?
The foundation of all prevention is customers being more aware of the generic scams circulating on the internet and the specialised nature of scams that may exploit and misuse a particular brand. A dedicated grievance portal where customers can submit their complaints and contribute to evidence collection is an alternative, particularly for online platforms.
Most legal recourses would be required or expedited if brand owners had their principal trademarks registered in India.
Observation and policing
Periodic surveillance of the internet realm would assist brand owners in determining whether their trademarks are being misappropriated.