Trademark Your Domain Name
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Sometimes a business crisis experienced by others can reminded us to make sure our own
house is in order. If we can avoid situations that could cause problems, weíll be better
business operators. A fatal business problem you should know about arrived in the
mailbox of a potential client of VectorInter.Net. As the technical and regulatory /
governmental affairs officer, I received a panicked email from this internet-based
business owner. He was asking for my help / opinion on an issue that could destroy his
entire business in the next 10 days. After doing some research, I believe that many
businesses are exposed to this same risk. You can protect yourself simply, but it requires
action on your part. What is the threat? It isnít fire, flood or natural calamity. There is
insurance for that. Taxes or local government actions depend on jurisdiction, but even
those canít shut down a legitimate business with little notice. So what is this threat?
Trademark infringement. What? Your first thought will be "I have real business
problems to deal with. We donít allow music downloads and use only officially licensed
software. Donít bring me trivial issues that donít effect my bottom line." Before you
click away, Stop. The situation Iím speaking of is about protecting YOUR trademark
(ServiceMark) rights. If you donít think you own any, you are in the majority and your
business is at real risk.
Here is the story of the potential client, and how I was NOT able to help save his
business. Letís call him "George". He is / was just like many of us..... a small business
owner. It doesnít matter what the business was. The issue is the same for all of us.
George received a legal notice from another much smaller company. It stated that he
needed to "relinquish his use of and the legal rights to" his web site domain name,
This aggressor company was contacting several other Internet-based businesses too. The
demands upon them all were very similar. Georgeís URL and those of the other
web-companies were infringing upon the trademark(s) owned by "AggressiveSmall
Company.com" In each case, The trademark rights were registered correctly and were
valid. George had no choices. The URLís were transferred...... completely destroying 4
web-based businesses and severely hampering the prospects of two others. Before we
look at why this happened and how you can avoid the same fate at your web-based
business, Let me review a little case law, so you understand what copyrights and
trademarks are ( and what they are not.) I am not a copyright and trademark lawyer.
Please consult someone who is, but Iíll give you the broad over view.
Any person or company can register a trademark. Most everyone knows that trademarks
( and itís related cousin the Service Mark) are ways entities protect intellectual property
and brand reputation. This is how MicroSoft, Rolex, and Disney protect the "purity" of
the items we buy. How does this effect your business? Any one has the right to protect
their trademark and has the right to notify you that your domain name is infringing upon
their trademark. Why? If your domain name has the potential of confusing the public into
thinking the trademark holder is somehow affiliated with your web site, they may bring
infringement claims against you. We read about fake Rolex watches and pirate
Windows 98 software in the business press, but the same applies to web site URLs. What
would you do if your name was Billy Gates or Walter Disney and you had registered a
web site URL under those names?. The courts would have to make the decision based
upon the trademark laws. If your domain name, in fact, has the potential of confusing the
public........ you lose!
My discussion here is not about fraudulent activities, but honest conflicts. What if Billy
Gates wanted to open a winery? What if Walter Disney was trying to franchise the child
care center concept he had operated from one location in "small town" USA for the past
15 years. History is a minor consideration. If my fictitious examples didnít own the
trademarks (Service Marks) to those concepts, they lose!
. If you have a registered domain name, how do you know it doesnít conflict / infringe
upon any prior trademarks? How devastating would it be to walk away from the URL
web address you are currently using? Simple domain name registrants can protect
themselves by registering a trademark. Protecting your URL as a trademark isn't
easy, but it can be done. Although you probably can't register the http://www. or the .com / .net, if
the use of your web-name fits the laws criteria, and it can be registered. This is a specific area of law, You should consult with
an attorney that specilizes in Trademark (Servicemark) and Copyright laws prior to registering your
domain name. For a more information and a more complete legal explanation, visit the United States Patent and Trademark Office (USPTO) web site link at the bottom of this page.
The short version of the story is "A mark composed of a domain name is registerable as
a trademark or service mark only if it functions as a "source identifier". That means your
mark must be in use on letterhead, advertising or on the side of a truck, etc. It must be
used in a way that is perceived by potential customers as indicating a brand name, called
a "source". The mark cannot be simply a domain name address used to access a web
site. Ebay is the trademark, not http://www.ebay.com The use of a domain name must
not be used simply as an address to direct customers to your web site, but must be used to
identify the products or services of the business claiming the trademark. The trademark
holder just happens to provides products or services via the Internet. Hereís another good
example. "The amazon" is a rain-forest in Brazil. No one (except governments ) can
trademark a place name. Amazon.com is a trademark, because it uniquely identifies a
specific "brand" of book retailer. http://www.amazon.com is just a web address, and canít be registered.
If you have any significant business revenue, "brand image" or corporate identity tied into
a URL web address that you are already using, the clock is ticking. This was Georgeís
problem and his failed argument is your warning. Should a company that registers a trademark have the
ability to destroy numerous businesses that legitimately registered domain names?
Unfortunately the answer is: Yes, they can. Who made the error and where do we place
the blame? Should a company that registers a trademark have the responsibility of
ensuring that a domain name registration agency doesn't issue URL names that may
infringe that trademark? Should every person that registers a URL address be required to
make sure that name doesn't infringe upon a registered trademark? Where does the
responsibility lie? The sad facts are George was at fault. His business had no real
relationship or similarity to the business world of the registered trademark owner. He was not pretending or implying he was affiliated we the registered trademark holder.
In fact, the rights holder was smaller and less well-know than George. It doesnít matter. Ultimately, the responsibility lies with the domain name registrant. The trademark (Service Mark) laws that apply in the hard-copy world, apply in cyber-space
too. By researching the trademark regulations and knowing your rights, you may avoid
the same fate. Donít end up E-mailing your internet / web site technical advisor with a
story like the one George told me. This will be a growing problem, Please protect yourself and your business now.
For a more information and a more complete legal explanation, visit the United States
Patent and Trademark Office at http://www.uspto.gov
Thinking of registering a new domain name? After seeing if any URL is available from a
Domain registrar, you may want to consider searching "TESS", the Trademark Electronic
Search System. Visit http://tess.uspto.gov
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