Is a 301 redirect trade mark infringement?


I have been asked by a company solicitor to take down a website for a trade mark infringement, and transfer all domain names to them.

I have created a new domain name and I want to redirect all pages to the new website using 301 redirect. Is this can still be an infringement?  I do not want to loose previous customers clicking on the old website and finding nothing.

Many thanks for your assistance.

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Alasdair Taylor's Answer

I’m assuming from your answer that you are planning to agree to the first part of the solicitor’s request, but not the second.

You do not say whether the company in question has relevant registered trade mark rights. That makes a difference. The laws relating to registered trade mark infringement are quite different from those relating to passing off (a sort of unregistered trade mark infringement). I’ll assume, however, that you are talking about (UK-enforceable) registered rights.

There different forms of infringement under the Trade Marks Act 1994, but we can use one as an example here. Section 10(1) provides that a “person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered”. On the face of it, the use of a domain name to redirect visitors to another site could amount to use “in the course of trade”.  There is some case law on “use in a trade mark sense” that might allow you to construct a defence here, but you should not rely on that without taking proper legal advice.

In any case:

  • none of that affects the legal position regarding any previous infringing acts; and
  • most likely, you would face a domain name arbitration claim which would be decided under the relevant disputes procedure, not under the law of trade marks (albeit the disputes procedures are informed by, and you might say aided and abetted by, trade mark law).

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