dmca takedown requests,but for trademarks

[theparrot]

Ok, the dmca is for copyrights, and a web host on receiving one has to take down the material that is claimed as infringing.

What does a web host have to do on receiving a dmca like request but that is claiming trademark infringment instead. What should they do in addition to have to do?

 

[Ronald Regging]

You might want to give more specifics... your post is hard to understand, but I think I got the gist of it. Without more specifics though, its hard to know what you are asking exactly.

 

[labrocca]

Actually a good question there. I would also like to hear an informed answer to this.

 

[jberryhill]

What does a web host have to do on receiving a dmca like request but that is claiming trademark infringment instead. What should they do in addition to have to do?

Nada. Nothing. Zilch.

I see this from time to time... either an idiot attorney or an idiot TM claimant fills out what looks like a DMCA takedown request, but it doesn't relate to a copyright.

The hosting company, of course, can do whatever it wants to do. If you are the hosting company, I would suggest requesting evidence of a "COPYRIGHT" in something. If they continue with a TM claim, then simply inform them that the DMCA provisions relate to copyright, not trademark.

If you are the end-user, then send what would otherwise be a DMCA counter-notification stating essentially the same thing. The host doesn't need to determine the merits, but can safely keep the stuff up regardless of the content of the counter-notification.

 

[godinu]

If i am understanding correctly, you are asking what a webhost has to do when getting a DMCA takedown notice. A webhost should ban the site that has copyrighted materials and not allow it to be posted again, and also notify whomever put it there. Then they would tell the copyright agency that they have complied.

As far as trademarks are concerned, some companies police their trademarks with vigor. Many magazines aimed at writers feature full-page ads telling writers that "Xerox" is a brand and is not a generic term for all photocopiers. (This goes on and on with many other brands as well.)

If a trademark holder does not want their trademark being used on a site, one can either ask if it could be used with a trademark notice, or just remove the language and post something else instead.

 

[labrocca]

No godinu..he is asking about how a DMCA notice relates to a TM infringment claim and as JBH has pointed out...it doesn't relate.

Thank you Mr. Berryhill for clarification.

 

[jberryhill]

If i am understanding correctly, you are asking what a webhost has to do when getting a DMCA takedown notice. A webhost should ban the site that has copyrighted materials and not allow it to be posted again, and also notify whomever put it there. Then they would tell the copyright agency that they have complied.

That's not even the right answer for proper DMCA procedure.

First of all, the OP was about what looks like a DMCA notice, but in actuality makes a trademark claim. The answer in that case is "do nothing".

Now, for a proper DMCA notice:

A webhost should ban the site that has copyrighted materials and not allow it to be posted again, and also notify whomever put it there.

No. The webhost should inform the site operator. If the site operator provides a DMCA counter-notification, then the webhost is to do nothing. If the site operator does not provide a DMCA counter-notification, then the webhost may disable access to the copyrighted material - there is no requirement to ban the entire site.

The point of the procedure is for the webhost to avoid liability for copyright infringement by one of its customers. It does not make webhosting companies the copyright police, nor a copyright judge. If the customer provides counter-notification under the DMCA, then the webhosting company accrues zero liability - even if the material is eventually determined to be infringing.