Copywrite

As Evan Brown points outover at Internetcases, the typosquatting case of Lands’ End, Inc. v. Remyhas survived summary judgment. In the case, Lands’ End claims that the the defendant was attempting to defraud them as part of an affiliate marketing program, and, as part of the scheme, was cybersquatting. Remy was part of the Lands’ End’s affiliate program, earning a percentage of purchases made by customers who were acquired by people clicking though on links from the defendant’s site to landsend.com. By tracking the user’s repeat traffic (presumably through cookies), later sales could be attributed to the original source of acquisition–here the affiliate Remy. Initial source of customer acquisition tracking and first sale attribution, on-line marketing innovations I helped pioneer at Coremetrics (Land End is a Coremetrics Customer), only tells 1/2 the story. Without knowing the number of ad impressions before the initial click-through, and the ad media viewed each time, the data is not as useful. This is why, at the very least, it was important for Lands’ End to know the URL and type of content the affiliate ad was placed on.

The problem–Remy was approved to put links on their website, savingsfinder.com. What they attempted to do, surreptitiously, is also squat on domains similar to landsend.com, ones most likely to be mistyped. The first time a user typed lnadsend.com or landswnd.com into their address bar, Remy would forward them to landsend.com along with the affiliate information, as though the person had clicked on a link at savingsfinder.com. The customer’s source of acquisition would be attributed to Remy in the Lands’ End system, and Remy would get a commission on subsequent purchases. Thereafter, if the same individual mistyped landsend.com in the same way, they would not be forwarded (because there was no need after the first instance), and instead be served a 404 error page (HTTP 404 - File not found). Once Lands’ End figured it out the defendant’s scheme, the filed suit for, among other things, violation of the Anticybersquatting Consumer Protection Act, [15 U.S.C. §1125(d)] (”ACPA”). The defendant moved for summary judgement claiming no bad faith on their part because the traffic was sent to the Lands’ End’s web site (from both a marketing and legal standpoint, this is flawed logic.). The court denied the motion on the ACPA claim saying that the question of bad faith is a question of fact for a jury because Remy earned commissions to which it was not entitled.

Lands’ End, Inc. v. Remy, — F.Supp.2d —-, 2006 WL 2521321 (W.D. Wis., September 1, 2006).