A lawsuit alleges that two web hosts took down a website in response to a trademark complaint.
A Maryland man has filed a lawsuit (pdf) alleging disturbing behavior related to trademarks and website takedowns.
Kenneth Gaughan operated a website about emotional support animals at ESApet.org.
Late last year, webhosts InMotion Hosting and DreamHost both canceled his hosting after a rival submitted trademark complaints, Gaughan alleges.
According to Gaughan, Elevate Rank LLC, which operates ESApet.com, sent trademark complaints that resulted in the hosts taking down the sites.
Elevate Rank has a figurative mark for ESApet that disclaims ESApet as descriptive.
Gaughan says he’s been operating ESApet.org since 2019. Elevate Rank’s trademark cites a first use date of 2017, which is peculiar. There was a site on ESApet.com at that time, but it had a different logo. The domain then expired and was listed for sale by HugeDomains.
In the lawsuit, Gaughan states that Elevate Rank wasn’t formed until 2021.
Regardless of the merits, it’s disturbing that web hosts would take down a site based on an unverified trademark claim.
The Digital Millennium Copyright Act provides a safe harbor for hosts for copyright claims, but it doesn’t extend to trademarks. Trademark owners have two avenues for relief: the UDRP for cybersquatting and the courts for trademark infringement.
According to Gaughan, InMotion Hosting has told him it won’t act without a court order or a trademark cancellation notice. That’s ironic, since it seems to have taken down the site based on merely a complaint.
There are ‘brand protection’ outfits who intentionally blur the line between DMCA complaints and trademark complaints, frequently submitting what amounts to a trademark complaint in the form of what looks like a DMCA complaint. I’m aware of one instance in which Yoav Keren’s outfit, Brandshield, shut someone down with bogus claims of patent infringement, submitted as a fake DMCA notice.
I’m not surprised. As a hosting provider we get a LOT of complaints that are framed as one thing when they’re actually another. One recent one was presented as if it was DNS abuse, but was really a domain dispute related to trademarks etc.,
Where does responding to this type of things rank in your overall costs? For example, is handling abuse complaints (legitimate or illegitimate) 5% of cost?