The travel industry has always been an early adopter of technology; bookings that were once taken at the local travel agent are now completed through a few taps on a smart phone, and every major brand operates online, some exclusively so. Whilst this transformation can bring tremendous opportunities (see our recent article on AI) it also comes with some significant risks. Here we look at some of the challenges faced in protecting your online brand, and explore the range of steps today's travel businesses can take to keep their rights and image safe from harm.
Opportunities and threats
Your travel website is the beautifully-crafted, slick and immersive interface between you and your customers. It's a unique space you've built to take people out of their dreary day job for a few moments and send them on a flight of expeditionary fancy, and to provide a seamless gateway for them to make their holiday dreams a reality. It's yours, and no-one can take it away from you.
Likewise, the brand you've built - the trademarks you've dreamt up and registered, the logos and the colour schemes - all add up to a relationship of trust between you and your customers. When they see your name, they know that you'll take good care of them, their banking details and their personal data.
And then, somebody comes along and registers a domain name incredibly similar to yours, using your trade-marked brand name, registered through a registrar with an intimidating name like 'PRIVACY LOCKED UP LLC' seemingly based out of an empty warehouse in the Arizona desert. It's got your name and elements of your branding all over it, and it's trying to fool your customers. Your reputation and your brand is under threat. What can you do? What should you have done in the first place?
In this article, we explore some of the steps you can take to look after your travel brand online, both defensive – minimising the potential for infringement in the first place, and monitoring the web to check for potential abuse - and offensive – taking action if infringement is occurring. Of course, you always have the protection of your registered trademarks, but enforcement is difficult; it requires the infringement to take place in a country where you have the mark registered and where there is an identifiable wrongdoer. The 'wild west' nature of the internet can make both of these elements incredibly hard to establish, and thus make a pure trade mark claim (i.e. taking the infringer to court) almost impossible. And even if you can find the infringer, how much will it cost you?
So, where to start?
Prevention or cure?
Prevention is always better than cure when it comes to domain names, and the cheapest and most efficient way of preventing the abuse of your registered trade mark online is to undertake a defensive registration programme. This means that you take a look at your domain name, and make a list of the variations which are available for registration, both in terms of the TLD (the Top Level Domain - .com, .co.uk, .org, etc.) and the name. You then register as many of these as you think reasonable, especially those involving TLDs from your main target markets, but also thinking about future expansion.
For example, if your main website was 'twobirdstravel.com', it may be prudent to register:
- twobirdstravel.au (Australian TLD)
- twobirdstravel.travel (one of the new TLDs available – there are hundreds, including .holiday and .agency, for example).
But you should look beyond the obvious and also consider registering, for example:
- 2birdstravel.com and so on.
You may not ever want or need to use all of these sites, but if you've got them registered, no one else can register them and abuse your brand. Making a decision to embark on such a defensive registration program is a question of assessing the risk versus the cost and administrative legwork involved in maintaining the domains. Undertaking the registrations as early as possible in the life of a brand – i.e. at the same time as your register your main domain - can end up being more cost-effective; as we'll see later, taking action against a domain squatter can be expensive and long-winded. Plus, registering similar domains before your brand becomes well-known means the registrations will be cheaper than when you're a household name. They're also more likely to be available!
When planning out your domain portfolio, don't forget to think about how your brand should be protected in other online areas –consider Twitter and Instagram handles, Facebook pages, and keep any eye on smaller platforms that may become big very quickly. Take as holistic an approach as possible to ensure consistency and to avoid any glaring holes in your portfolio.
Watch and Shoot: the benefits of continuous monitoring
Actively monitoring the use of your brand on the internet is a vital part of running an effective online business. If your website is the mainstay of your company, it's simply not enough to sit around and wait for your customers to bring the problem to you.
So what should you be doing right now? Obviously this depends on a risk and resource analysis. High risk businesses such as banks run large brand protection programmes, using algorithms to scan across the whole internet to pick up new domains or websites which use their trade marks in some way. Of course, it's not possible to take action against all of them – some will be using the marks in a valid way, others will be so low-risk as to be not worth the cost of further action. The flagged sites need human review, by someone who understands your brand and the ways in which it can be infringed: this can be in-house legal, or you can use an external advisor. Although the cost in terms of time and money can be considerable, for some, the expenditure is a necessity.
Whilst a large-scale intensive programme may not suit all businesses, carrying out a smaller review using a similar methodology is usually worthwhile. Spending a couple of hours a month searching for your trade marks on different search engines, as well as on domain registrar websites, for example, is time well spent. Use the kinds of variations on the mark mentioned above, and take the time to scroll past the first couple of pages of results – brand bandits won't necessarily be hitting the first page straight away. Whilst this won't pick up everything, it will at least uncover the sorts of sites your customers and potential customers are likely to come across.
I've found an infringement, what can I do?
If you've found, or been alerted to, an organisation or individual(s) abusing your brand on the internet, what can you do? This depends on the type of infringement. If the offending website is infringing your brand through its content - i.e. the design of the page, or images or text which you own the copyright in on, say, Facebook- then you may wish to pursue a claim for infringement through the traditional methods: cease-and-desist letters, and the civil courts. It is worth noting, however that such action can be very expensive, and is limited to a) where you can actually identify the person who has registered the website and/or is uploading the content, and b) where you can prove your rights in the relevant territory. Where the registrant of the domain is behind a privacy protection service, it's almost impossible to do this.
Another option in this case is to use the complaints process of the relevant domain registrar – where you can prove copyright or trade mark infringement on a domain, the relevant registrar should, in theory, agree to deregister the website (as their terms and conditions of use will usually prohibit such behaviour). Unfortunately, some registrars can be more helpful than others: the larger, well-known names have generally well-functioning complaints procedures, but it can be very difficult to get a helpful response from obscure registrars or those in 'opaque' jurisdictions. Unfortunately, some registrars are notorious for turning a blind eye to such activity, despite it being a contravention of their T&Cs.
If your complaint relates to a domain name – i.e. your trade mark is being used and abused as part of a domain - the options differ depending on which TLD is being used. If it's a .co.uk domain, for example, you can apply to Nominet (the .co.uk registry) through its Dispute Resolution Service (DRS) to have the domain taken down or assigned to your company. For some TLDs (e.g. .com), you will need to make a complaint through the Uniform Administrative Dispute Resolution Policy (UDRP) process. The DRS, UDRP and other domain name dispute procedures are simplified arbitration proceedings, where each side can put forward evidence in relation to the disputed domain. It is certainly possible for the work associated with these procedures to be undertaken 'in-house', even without a dedicated legal team, but even with this 'cost saving', they can take a considerable amount of resources to prepare and the filing fee for a UDRP can be $1,500. Worse, all such fees are borne by the complainant. Using external advisers, though more expensive, may give you a better chance of winning the argument in a difficult dispute.
Unfortunately, getting offending websites and domains taken down once they're up and running can be a difficult, time-consuming and expensive process. You may not have a choice either, particularly if the infringing site is causing real damage to your reputation, for example, or if someone has registered your trade mark as a domain using a country-specific TLD in your next prime target market.
In summary, it's vital to invest early and extensively in a web brand protection program, not just for a web-based business, but also for any business with an online presence. Failing to do so is a false economy: a single UDRP complaint could cost more than maintaining a reasonable set of defensive domain registrations for two or three years. Prevention, when it comes to your brand and the internet, really is better than cure.