Have you ever looked up the WHOIS information for a domain name to find out who owns it, only to discover that the information listed there is fake? (I'm not talking about the increasingly popular private registration services, but false information.) That can be frustrating, especially when the site is infringing your intellectual property rights.
The good news, though, is that there can also be severe consequences for the registrant who provided the false information. If you can find the registrant and you bring a copyright or trademark infringement action against them, the fact that they provided the false contact information could dramatically increase the amount of money you receive in the litigation.
That's because both the Copyright Act and the Lanham (Trademark) Act contain presumptions that anyone who provides false contact information for the domain name of a website with infringing content must be committing the infringement willfully.
The Copyright Act (at 17 usc 504(c)(3)(A)) says:
In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.
When the court finds that copyright infringement was willful, it may increase the statutory damage award from $30,000 per work all the way up to $150,000. Statutory damages are only available, though, if the copyrighted work was registered before the infringement began. (So get your works registered! It's easy and ony costs $35! What are you waiting for?) Similarly, the Lanham Act (at 15 USC 1117) says:
(e) Rebuttable presumption of willful violation
In the case of a violation referred to in this section, it shall be a rebuttable presumption that the violation is willful for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the violation. Nothing in this subsection limits what may be considered a willful violation under this section.
Willful trademark infringement can also be the basis for an enhanced award, including of attorneys' fees.
So if you're a plaintiff in an online copyright or trademark case, keep these provisions in mind, as they could greatly increase your potential award (and hence your leverage in negotiations). And if you're registering a domain name, think twice before listing a fake name as the contact--because you never know when that might come back to bite you.
