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Trademark can be a Powerful Basis for DMCA Takedown Notices

Having a registered trademark can be a powerful way for you to protect what is said online, by your competitors, about your brand. And most importantly, to prevent the use of your brand (or something confusingly similar) by your competitors. One way to take down content that may be infringing is using the DMCA "Takedown Notice" provision, which, when sent to an Internet Service Provider ("ISP"), requires the ISP to take the material down.

Often, when a brand starts having some success in the marketplace, a number of competitors arise that are geared to taking advantage of the brand goodwill that you have built up. They may benefit by having a name that is close to your trademark, or by using your brand in blog articles or comparisons, to divert some of your search traffic to their website.

In either case, you can remove content that infringes your trademark through the DMCA Takedown Notice process (which we can do for you!), so long as you also have copyright over your brand. The DMCA process involves sending a notice to the ISP, host or the carrier of the infringing content or webpage. Under the DMCA law, if the ISP or host would like to avoid liability for the material, they can remove the material or otherwise make it inaccessible to viewers. In the notice you must provide the reasons for the takedown request (i.e. the copyright that is being infringed). As a result of receiving the takedown request, the Internet Service Provider MUST remove the content, and send a message to the owner of the content, who will have a chance to rebut the takedown and provide reasons why the content is actually legitimate. In practice, most content that receives such requests is illegitimate and the owner will not successfully rebut the claims against him or her, or will simply not respond. Accordingly, the content will stay off-line, and your goal has been achieved.

You must make sure your claim is legitimate, however, as the DMCA provides for damages and attorney’s fees for “any person who knowingly materially misrepresents” the facts in a takedown notice.

While it is time-consuming to review content and file DMCA Takedown Notices where necessary, it can provide a great benefit to your brand recognition and can end the confusion that your competitors are trying to introduce into the marketplace. WE CAN FILE THESE FOR YOU ON SHORT NOTICE, AND GET THAT INFRINGING CONTENT REMOVED.

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