Is Your Domain Name Trademarked?
  Trademark Your Domain Name
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   Herr Heinrich D.Rosberg is the Gewerblicher Direktor at the offices of VectorInter.Net/Deutschland.

   He uses his "digital certificate" to raise and lower the draw-bridge on the family castle, located on the Rhine River, near Bonn Germany.
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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, www.GeorgesCompanyName.net. 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

    Read more about "How webpage hosting works" or How E-mail- based Newsletters can promote your business, your product or your service. Visit the VectorInter.Net newsletter archives.

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