DMCA Trademark Infringement: Everything You Need to Know

DMCA trademark infringement allows a copyright owner who finds their material posted online without consent to send a takedown notice to the service provider.3 min read

DMCA trademark infringement refers to the Digital Millennium Copyright Act and allows a copyright owner who finds his or her material posted online without permission to send a takedown notice to the online service provider. Hosts have some protection, or immunity, from being sued for infringement, but they are required to take swift and reasonable action to fix an alleged infringement upon notification. Because they do not want to lose their immunity, if you advise them of ongoing infringement, the host is likely to order the website owner to take down the infringing content, or they will be forced to.

DMCA Mistakes

Often, people send DMCA notices for problems that are not really copyright infringements. You cannot copyright a name, a look, or an idea. The DMCA process is not for trademark infringement, either. If you send a DMCA notice in connection with a matter that is not deemed to be an infringement, you might luck out and just not get a response. The worst case scenario is that work is removed and you find yourself facing a lawsuit.

You should only use the DMCA process in situations that are clear-cut copyright infringement. If you have any questions or doubts, it's best to contact an attorney.

Contacting the Host

If you are reporting copyright infringement to a host in the United States, you will need to file a proper DMCA complaint. If you don't, the host is under no obligation to take any action or remove the infringing content. They are not even required to respond. Some hosts will respond to non-DMCA-compliant takedown notices, while others will not. More and more hosts are not responding to incorrect requests, so it's even more important your notice is complete and meets all the necessary requirements prior to sending.

If the host is outside of the United States, stock DMCA letters are not applicable. The DMCA law is a United States law, and therefore, international hosts are not bound by the law. This is applicable to where the host is located, not the infringer. If the country where the host is located is a non-English speaking country, it is likely you won't get a response. You may get lucky if the host is in an EU country, which has the EDEC. This describes their takedown procedure that is used in a majority of European countries. If you are trying to reach a host in Russia or China, you are likely to find almost all hosts are uncooperative, and it may be better to focus your efforts on search engine removal.