September 27, 2017

Fake and fraudulent websites can cause significant damage to brand owners, and place consumers at risk of serious harm. Recent cases that we have dealt with suggest that these types of operations are becoming increasingly sophisticated.

The fake site will typically:

• use a domain name and logo that references a well-known brand;
• adopt the get-up of the brand owner’s official website; and/or
• purport to operate in the same (or a similar) market to that of the well-known brand.

Some fraudsters go to additional lengths, such as using false company details or even incorporating bogus companies. The fake website may also be part of a larger network of domains, marketplaces or social media accounts which use the brand’s logo and intellectual property – this is obviously concerning. Social media channels are increasingly being used by fraudsters to provide a significant platform. For instance, by providing a WeChat ID, fraudsters can interact with users to obtain payment details and other sensitive information. Tackling a wider operation of this kind requires a strategic and multi-pronged approach.

Sending notices to the operator (or registrant) of the website and entities that support the availability of the site (such as the host and domain registrar) is a good starting point. Sometimes a cease and desist letter is enough to prompt the operator to cease its infringing activities. If not, registrars and/or hosts are often prepared to suspend a website, especially where it is enabling fraud. If the registrant’s details are privacy protected, the registrar may be willing (or legally obliged) to disclose them upon request.

In the event that notifications do not prompt adequate action, there may be the option of filing a domain name complaint. This sort of complaint will only be relevant where the domain name of the fake website is identical or confusingly similar to a trade mark that you have rights in. Complaints can be made to WIPO under the Uniform Domain Name Dispute Resolution Policy (UDRP) or (in the case of .uk /.co.uk domains) to Nominet. In both cases, a successful complaint will result in the transfer of the domain to the complainant (if requested). The complaint can relate to more than one domain name provided the domains are registered in the same name.

Alternatively, the Uniform Rapid Suspension Scheme (URS) provides a cheaper and faster path to relief for clear-cut cases of infringement, but is only available to ‘new’ domains (those with a generic top-level domain that was introduced after June 2013). The URS procedure only allows for suspension of the domain – not for transfer or cancellation. Websites that are engaged in fraudulent activities can also be reported to Action Fraud, the police department for reporting fraud and cyber crime.

As noted above, it may be necessary to tackle the wider operation. Takedown notices can be sent to social media platforms, citing trade mark and/or copyright infringement. Some platforms also provide specific facilities for reporting scams and fake profiles. Familiarity with the main platforms’ procedures (and ensuring that notices are provided in the correct format) will speed up the process. As for fraudulent UK companies associated with a fake website, the Company Investigation Branch of the Insolvency Service may be able to assist.

The Internet enables fraudsters to operate with anonymity, whilst providing the opportunity to target a global audience. There are routes to identify those behind fraudulent operations and there may be occasions where substantive legal proceedings will be viable, subject to factors such as the operators’ location and the nature of the infringing and/or criminal activities.

Wiggin has a wealth of experience advising clients in relation to fake websites and supporting them though the options outlined above. Please get in touch with Rachel Alexander or Olivia Brown to find out more.