Threats at the Speed of Light: Fraz Wahlah

It seems everything online moves at warp speed. Just as easy as it is to spread a viral campaign to hundreds of thousands of web users in a matter of minutes, it is just as easy for companies or individuals to lose control–lose control of their identities, trademarks or brands simply because they don’t know how big and integrated the World Wide Web really is, to people who are ‘on the inside’. A domain expert for the Web could be an 18-year old who thinks it might pay off to register website addresses for big local brands that are primarily still brick-and-mortar. The company itself may not realize it until a loyal customer brings it to their attention or unless they’re slapped with a lawsuit, which brings us to another point.

There is so much viral growth taking place online, it is just not possible for the law to address or patch every loophole that is discovered. And if we wait for legislation to morph itself to every vulnerable scenario, well, we know where that gets us!

CSO Pakistan has been receiving emails and observing the nature of discussions taking place amongst companies who simply fear the unknown. The virtual world is the intangible place that simply has growth in so many directions, it is difficult for the big businesses to see what they’re up against. And that’s why we got in touch with Fraz Wahlah, a lawyer who practices various aspects of international trade, corporate, internet, technology and intellectual property law, copyright and trade secret law. Fraz has extensive experience in transactions involving technology licensing, including software licensing, ERP, SCM and CRM implementations, software development agreements and confidentiality matters, which is why the sounding board may help you better understand what the young players in the virtual arena hold for you.

A lot of Pakistani brands don’t have registered domains. If a brand doesn’t have ANY online presence, that means that their target audience is not online. Is it really fraud or theft if an enthusiastic 15-year old registers “Blue Band Margarine” as a domain and on Twitter and uses it to aggregate and spread information about dairy products without any direct monetary gain?

There is a very thin and grey line between legal and illegal behavior in cases of identity theft, white-collar crime and fraud. Monetary gain or not, registering a domain that is another business’s trademark and operating a website with that, may be damaging the real business or goodwill thereof and may amount to fraud which is an offence punishable under the law. This is also known as cybersquatting and is very common these days.

Such an act by an individual or corporation may also be classified as “Spoofing” or “Other Offences”, under “The Prevention of Electronic Crimes Ordinance, 2007” which is a crime punishable by up to 3 years imprisonment, fine or both.

This may also drive the internet traffic generated by search engines as well as ordinary users going directly to the fake website, hence resulting in infringement as well as fraud, both of which are classified as criminal acts.

If someone has a corporate identity which does not belong to them on a service such as Twitter for example, is that really an example of identity theft?

Yes, this is called ‘accountjacking’ and is another instance of identity theft.

What steps should a company be taking online to protect themselves from such ‘threats’?
Companies should take precautionary measures and register their domains while they are still available. If they are not, companies should consult a lawyer to either get the domains infringing their trademarks cancelled or obtain control thereof. The law and the ICANN (Internet Corporation of Assigned Names and Numbers) rules provide for cancellation as well as the transfer of domain names to the legitimate owners of the trademarks.  Most importantly, companies should get all the names, domains, logos and slogans, they want to protect, registered as trademark. Trademarks are the most precious corporate assets that both large and small companies should guard against unauthorized use or abuse. Gmail, for example, cannot call itself Gmail in some parts of Europe just because Google did not have ‘Gmail’ trademarked over there. As a result, Gmail is now known as ‘Google Mail’ in Europe.

Activities such as ‘cybersquating and ‘accountjacking’ can have serious implications for a business since the person using the trademark wrongfully may be defrauding customers, misleading or deceiving them. Delaying this may not just cause significant loss of business but also the loss of customer goodwill which may never be recovered.

It is interesting to note that trademark infringement may also occur in several other ways. For instance hidden meta tags, title tags, or anchor links. Companies and individuals can also be the victims of internet defamation or cyber crime. A lawyer specializing in Cyber Laws may help in this regard.

Fortunately, the Pakistani legal system provides for ample protection for trademark owners, and if the legal remedies are pursued aggressively and proactively, victims can control the menace of infringement by the due process of law.

Generally speaking, what are some ways to resolve such conflicts before they escalate?
It is either through “Cease and Desist Letters” or taking recourse to ICANN. In any case, a lawyer must be consulted. However, in the case of ‘accountjacking’ on a social networking website, victims may want to check the Terms of Service associated with the social network and contact the administrator to halt the accountjacker’s activities.

Under existing laws, what could the individual be charged with, if at all?
An individual accused of ‘cybersquatting’ or ‘accountjacking’ may be guilty of and be charged with any or all of the following:

Spoofing: Spoofing occurs when someone establishes a website or sends an electronic message with a counterfeit source intended to be believed by the recipient or visitor or its electronic system to be an authentic source with the intent to gain unauthorized access or obtain valuable information which can later be used for any unlawful purpose.
False Light: This involves the implication that the violator has done something which is highly offensive to the victim.

Trademark Infringement: Trademark Infringement is the unauthorized use of a protected trademark or service mark, or use of something very similar to a protected mark. Trademark Infringement not only provides a direct recourse to the courts, but the threat of litigation costs and direct and indirect damages sometimes stops the infringer with merely a “Cease and Desist Letter” from a lawyer having expertise in this area.
Fraud: Making a case for fraud is another way to obtain redress if enough evidence in support of the claim is available. The victim will have to prove damage or personal gain by the offender.

Defamation: If the cybersquatter or accountjacker is making false statements causing damage to the good will of the company, this could result in a cause of action for defamation.

These are only a few types of recourse the law provides through which a victim can seek redress. However, an experienced lawyer must always be consulted so that the situation can be properly assessed and a proper course of action is pursued.