One of the most challenging aspects of enforcing intellectual property rights is online enforcement of trademarks and copyrighted material. Even though the Internet as we know it has existed since the 1990s, it remains the Wild West regarding abuse of intellectual property rights in the diverse nature and scope of abuse ranging from classic cybersquatting to sophisticated and ever-evolving scams and attacks against unsuspecting targets. The problem has become so pervasive that many intellectual property owners have had to resort to a triage type of enforcement due to the sheer volume of abuse, while others remain completely unaware of the true scale of abuse or that it exists at all.
One of the most problematic and difficult to detect abuses are cloned websites or what has become to be known as “pagejacking”. The intention of the pagejacker is to clone a reputable website in an effort to redirect web traffic from the original website to the cloned website for a number of nefarious purposes. Sometimes it is a “mousetrapping” scam in which users encountering the cloned site are met with an unending series of pop-up windows often leading to pornographic material when they click in links and attempt to leave the site. Other scams involve cloning an entire legitimate website, but changing the contact information and the identity of certain corporate officers or other personnel identified on the website. The pagejacker then targets unsuspecting victims with email solicitations and links to the cloned seemingly legitimate website. The nature of the solicitations may vary, but the ultimate goal is usually some form of financial fraud and/or identity theft by tricking victims into divulging financial and personal information.
Not only do the owners of legitimate websites that have been cloned have to deal with the obvious copyright and trademark infringement perpetrated by pagejackers, but some of these scams have the potential to be extremely damaging to business and consumer relationships, as well as to the reputations of the legitimate businesses exploited by pagejackers, especially if the cloned site is a front for selling counterfeit, defective, harmful, or illegal products.
What remedies are available to prevent a cloned website from being created or shutting it down once it is online? Unfortunately, there is no magic bullet to preventing the copying of content from a legitimate website and to prevent a cloned site from being created, so enforcement must focus on strategies for having a cloned site taken down as soon as possible. Fortunately, filing a take-down notice with the cloned website hosting company pursuant to the Digital Millennium Copyright Act (DMCA) is an easy and expeditious way to have a cloned site taken down, so long as the pagejacker does not contest the take-down notice. Sending a cease and desist letter to the registrant of the domain name hosting the site is also an option. A complaint to the registrar through which the domain name was registered can also be an effective remedy, though it often takes considerably more time for a registrar to take appropriate action. If the domain name hosting the cloned website consists of or contains a trademark owned by the complaining party, then an action pursuant to the Uniform Domain Name Dispute Resolution Policy (UDRP), litigation in federal court against a known defendant, or an in rem action court against the domain name itself in the case of an unknown defendant may also be options. However, in the case of a repeat offender whose identity and location remains unknown, a court action may be impractical and cost prohibitive to permanently solve the infringing activity.
In regard to detection of cloned websites, conducting a Google search for text appearing on the legitimate site may detect the identical text appearing on a cloned site. Engaging a company that offers professional online content surveillance services may also be helpful.
Fortunately, while this remains a pervasive problem, there are often effective solutions and intellectual property owners are encouraged to consult competent counsel to develop a strategy and plan of action against pagejacking and other online threats.