Brand owners have a responsibility to police third-party use of their marks, unless they want to have those rights either diminished or lost altogether over time. Policing the marketplace has always been a challenge. The Internet raises new unforeseen challenges every day.  On this blog we are going to run a multi-part series addressing these concerns– the goal will be to educate our readers on the various types of Internet-related trademark issues and when possible, offer some strategies for dealing with these challenges.  While there are no easy solutions, one thing is clear- brand owners must be more vigilant than ever in protecting the goodwill established in their valuable trademarks.

Today’s topic: Phishing Attacks.  ”Phishing” is defined on Wikipedia as:

the criminally fraudulent process of attempting to acquire sensitive information such as usernames, passwords and credit card details by masquerading as a trustworthy entity in an electronic communication. Communications purporting to be from popular social web sites, auction sites, online payment processors or IT administrators are commonly used to lure the unsuspecting public. Phishing is typically carried out by e-mail or instant messaging,and it often directs users to enter details at a fake website whose look and feel are almost identical to the legitimate one. Even when using server authentication, it may require tremendous skill to detect that the website is fake. Phishing is an example of social engineering techniques used to fool users,[2] and exploits the poor usability of current web security technologies.

Phishing is a fraudulent, criminal offense.  Trademark law can also be used as a supplementary weapon to deal with phishing attacks. A variety of federal and state anti-fraud laws in the U.S. can be triggered by phishing activities because the act incorporates deception and the fraudulent imitation of another company’s trademarks in order to lure recipients into divulging confidential financial information. This use of another company’s trademark in an email message in order to pose as that party fraudulently likely constitutes a form of both trademark infringement and false advertising, both of which are illegal under the Lanham Act.

Another potential legal weapon may eventually be the Anti-Phishing Consumer Protection Act of 2008, which was introduced to Congress a few years ago but has not yet been enacted.