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BizIPEsq.
BizIPEsq., Attorney
Category: Business Law
Satisfied Customers: 996
Experience:  I am a business attorney. I represent individuals and companies with all business related matters.
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Hi, I own a trademark registered in US, next: in a web site

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Hi, I own a trademark registered in US, next: in a web site my brand has been defamated by a third person, people post whatever they want on companies, this website named: apestan.com has private registration by domains by proxy, a goddady company and is focus to defamate bussines.
the point is that i have received calls asking for money to erase the post in that website and this post has created a moral and financial damage to my bussines, i own a school, : institutoaleman.edu.mx is my website
what can i do? thank you
Submitted: 1 year ago.
Category: Business Law
Expert:  BizIPEsq. replied 1 year ago.

BizIPEsq. :

Hello, I will be assisting you

BizIPEsq. :

Question: do you have any information about the website the location of the company and/or servers? Do you know the state they might be in or even if they are in the US?

Customer: No I dont, the name is XXXXX XXXXX is protected by domains by proxy, a godaddy.com company, the whois information leads to this company named domains by proxy which sells privacy and is located in arizona
Customer: No I dont, the website is protected by a company named domains by proxy in arizona which sells privacy for domain owners
Customer: people under alias post in that website but they refuse to revel who this person is, so i cannot do anything against the website that supports anonymous post or the website itself
Customer: domians by proxy in arizona hides who or whrere apestan.com is
BizIPEsq. :

Domains By Proxy is a company that a domain owner can register with and it serves as a middle party that forwards any notices to the domain owner without revealing who it is.

BizIPEsq. :

a quick look at apestan.com shows that most complaints are related to Mexican companies

BizIPEsq. :

here's what you can do:

BizIPEsq. :

1) if you believe that they used your intellectual property without your permission (e.g. copied a portion of your website for example) then you can send them a DMCA take down notice (you would send it to Domains By Proxy) and they would have to comply. Through this notice you should also request that Domain By Proxy reveal to you who is the domain owner (although domain by proxy would have no legal obligation to do it at this stage but they might)

BizIPEsq. :

2) if you learn that the site is in the US you should 1) contact the state attorney general of that state and report the "shake down" they are trying to perpetrate against you and 2) you should consider filing a law suit against them for defamation, illegal business practices etc.

BizIPEsq. :

3) if you still cannot get their info that you would have to file a law suit against then obtain a subpoena from the court and serve it on Domains By Proxy to reveal the owner of the site. The most cost effective way to obtain a subpena is to file a law suit in small claims court. The process is very straight forward and you do not need an attorney but you will be limited in the amount of recovery in such a case. Otherwise you would have to file a a law suit in regular trial court.

BizIPEsq. :

4) Finally, in addition to self help as noted above consider retaining an attorney to write a demand letter. Though the demand letter itself does not have legal standing (other than serving as notice) many times it gets the needed attention. The attorney would send the demand letter to Domains By Proxy. The cost should be very manageable as it should not take too much attorney time to write such a letter.

Customer: excuse me what is DMCA ?
Customer: one question counselor, if the website owner is in other country but the domain is registered in US, what proceeds?
BizIPEsq. :

Appologies. DMCA stands for Digital Millennium Copyright Act. This statute has specific provisions that protect a copyright owner and allow such an owner to demand the take down of copyrighted materials that are posted on the site without permission. If the website owner does not comply with such a request then the website owner becomes liable to the copyright infringement (assuming one exists)

Customer: Must a lawyer create this DMCA notice or can be done by other media?
BizIPEsq. :

your follow up question is excellent. the .com domains are governed by ICANN which is an international body that governs internet domain names so a .com domain is not considered American per say and generally in order to attack the domain your options are limited only to trademark issues (for example of the domain infringed on your trademark rights). However, if the servers the site is using are in the US then you would be able to send a DMCA take down notice or any other court order to the company that is hosting the servers. Note that the operator can always relocate the servers outside the US.

BizIPEsq. :

Lawyer is not necessary for DMCA take down notice

Customer: DMCA take down can be dome by myself in internet? Is there any similar DMCA act for the ICAAN in case is outside US the owner?
Customer: Apologies for my many questions but
BizIPEsq. :

ICANN and DMCA are not related. ICANN only governs the registration of the domain not the content of a website. DMCA only applies to website operators in the US or if the servers are in the US. For foreign operators one need to avail themselves of the laws in the specific country in question.

BizIPEsq. :

You can draft and serve a DMCA take down request by yourself.

Customer: ok thank you counselor, one last question, they mention my trademark and defamates agains it but what would be the legal infringments to be mentioned in my DMCA notice to make it serious?
BizIPEsq. :

As noted DMCA does not apply to defamation or trademarks only to copyright infringement -- for example if they copied a portion of your website without permission. For strictly defamation issues you would need to file a law suit and obtain a subpoena and/or an order.

BizIPEsq. :

Thank you for allowing me to assist you.

BizIPEsq. :

Please rate my service. Without your rating I do not get compensated for my work.

BizIPEsq., Attorney
Category: Business Law
Satisfied Customers: 996
Experience: I am a business attorney. I represent individuals and companies with all business related matters.
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