Cybersquatting and typosquatting: what is the difference between them?

When trying to access a website by typing a domain name, we often miss the address and land on a page that has nothing to do with the one we were looking for. This has probably already happened to you. It happened to me many times.

Even worse is when we don’t type in the address and use a search engine, which could be Google or Yahoo, and hundreds of results appear that don’t have any kind of correspondence with the site we wanted to visit. This is normal because sometimes we misspell, other times the site we are looking for may have been registered before in the name of another company or individual and when we access it appears a lot of advertising and advertising of other brands.

But what do these people gain by doing this? Did you ever stop to think?

The reasons vary a lot and mainly concern the sale of online advertising through the placement of campaigns on these sites, in which the “owner” receives a few cents for each click on the advertising pieces or for each placement of a video or banner, for example. Many website owners do not post content created by them and participate in several affiliate programs so that only company advertising is served, which is not, at first, illegal.

An example of this is the domain www.carro.com.br, which has no proprietary content, only advertising, and is on sale for US$ 120 thousand (more than R$ 630,000 at the current price). [1] The owner was smarter and faster than the others and registered this domain first, so today he earns good value doing practically nothing.

Cybersquatting and typosquatting: understand what piracy and domain hijacking are.

The truth is that what makes money on the internet is sex and advertising. On any adult content site you will find lots and lots of advertising for different products and companies, and that’s why many of them are free. It’s the advertising that fuels the earnings — and what earnings!

The registration of domains called “generic” (such as carro.com.br, football.com.br, macarrão.com.br), which do not refer to a well-known brand or person, company name or famous product, is perfectly legal and totally lawful, and international and national rules allow this, being protected by the free business initiative in item IV of art. 170 of the Federal Constitution.

On the dark side of the force, there are people who practice what is called cybersquatting and typosquatting, who have emerged and sustain a huge parallel market of big and easy profit opportunities, misleading the consumer or falsifying many registered domain names, causing harm to everyone.

What is cybersquatting?

Cybersquatting, also called cyber-possession, emerged and developed with the opening of the internet to access by the general public and provided a tremendous profit to several people who sold domains for a few million dollars, but it is still current. This technique basically consists of first registering a domain to which someone else would have the right. It is different from generic domains because no one has a certain and exclusive right to the addresses already mentioned in this situation.

Whoever does this uses the principle of first come, first served, in which the domain registration is given to the person who arrives first, regardless of whether in good faith or in bad faith, because the request is not preceded by a previous act to find out whether the person requesting the registration really has any link with the brand , the product or the company.

Bill n. 256/2003, which deals with the requirements for granting this registration, but who knows when it will be and if it will be voted someday.

Experience shows that those who practice this act prefer to register domain names that have some relevance to the market and consumers and that correspond to a term that is widely searched on the internet and most often refers to famous brands and people or television programs.

In the United States, the word “cybersquatting” was first defined in the Anticybersquatting Consumer Protect Act of November 29, 1999 [2] as being who, very briefly, in bad faith makes a similar registration without having any relation to that trademark or that name, with the intention of confusing and selling that domain later.

What is typosquatting?

The practice of typosquatting consists of changing or removing some letter from the domain name to be registered, imitating a domain already registered, or registering well-known trademarks with small changes in spelling in order to confuse the user, taking advantage of of the constant and common mistakes that occur when typing these addresses.

Both practices divert customers from other companies with the use of fraudulent means that confuse Internet users, as the vast majority of Brazilian users do not write correctly even in Portuguese, perhaps other languages, typing wrong words and receiving different results from those they expected. But, it doesn’t matter, this can be considered unfair competition (parasitic), which can be punished in the form of art. 195 of the industrial property law.

If a consumer enters a website thinking he is another one, hires the “counterfeit” company and buys a product of inferior quality and at a high price, he is the target of a crime such as embezzlement or has his personal data improperly appropriate, believing that they are effectively the The same companies will certainly do negative publicity for the “original”, further increasing the loss.

It is easy to analyze this situation in order to identify whether there was bad faith or not, since when we consult the Brazilian Whois system [3] or from internationalized domains [4] we may have access to the date this registration was made, who made it and what is the complete listing of that person’s domains. If there are more domains with the same characteristics, it is possible to demonstrate a lack of legitimate interest and bad faith.

The fact is that these two types of “electronic domain counterfeiting”, in fact, are modern forms of misappropriation, unfair competition and illicit enrichment provided for in Brazilian law [5] and extremely harmful to the market and consumers who are misled and can even suffer serious consequences when carrying out any operation with these people, thinking they are in a safe environment, because they believe they are on a company website they are looking for when in fact they may be being victims of the most varied forms of crimes committed with the help of the internet.

Therefore, one should not fail to take the necessary measures to protect the rights of those who lawfully register a domain, because everyone is harmed by these practices. Thus, if there is damage, which can even be presumed, compensation can be sought.

[1] https://sedo.com/search/details/?partnerid=324709&domain=carro.com.br
[2] Available at: http://www.lclark.edu/~loren/cyberlaw01/1125d.pdf>. Accessed on: 4 Mar. 2008.
[3] www.registro.br
[4] www.who.is
[5] Art. 189 – commits a crime against trademark registration who: I – reproduces, without authorization from the owner, in whole or in part, a registered trademark, or imitates it in such a way as to induce confusion; Art. 195 – commits the crime of unfair competition who: III – employs fraudulent means, to divert, for their own benefit or that of others, the clientele of others; IV – uses the expression or propaganda sign of others, or imitates them, in order to create confusion between the products or establishments, 884 of the Civil Code – Anyone who, without just cause, enriches himself at the expense of another, will be obliged to unduly repay the earned, after updating the monetary values.

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Rofis Elias Filho, columnist for TechWorld, is a geek and lawyer, passionate about technology since childhood. He was the first on the street to have internet at home, in 1994, and specialized in Computer Law in Brazil and Portugal. Today, he is a professor of the same subject at several institutions, having been the executive coordinator of the Post-Graduate Program at ESA/SP. He is a partner at Elias Filho Advogados, a lawyer for several technology companies in Brazil and abroad.

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