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| Is Your Domain Name A Trademark
Infringement? |
Is
Your Domain Name A Trademark Infringement?
I recently received an email from a concerned, fellow Internet
business owner, asking for my opinion on an issue that could
literally destroy his Internet business and the business of
several other domains involved.
He had received legal notice from a prominent company, stating
that he needed to relinquish his use and rights to his web site
domain name because it contained three letters that infringed
upon their trademark and their domain name. This same company
also contacted several other Internet business owners and made
similar demands.
Should a company that registers a specific trademark have the
ability to destroy numerous businesses that legitimately registered
domain names? Should a company that registers a trademark have
the responsibility of ensuring that a domain name registration
agency doesn't issue domain names that may be a trademark infringement?
Or should an Internet business have the responsibility of making
sure a potential name doesn't Infringe upon a registered trademark?
Where does the responsibility lie?
Ultimately, the responsibility lies with the domain name registrant,
as the trademark laws that apply in the hard copy world also
apply on the Internet.
Any company that registers a trademark 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. The courts would
have to make the decision based upon the trademark laws and
if your domain name, in fact, has the potential of confusing
the public.
Domain name registrants can protect themselves as well. If you
have a registered domain name that doesn't infringe upon any
trademarks, you too may be able to register a trademark. Registering
a domain name as a trademark isn't easy, but it can be done.
Although you can't register the http://www.or the .com, if the
use of your name fits the laws criteria, it can be registered.
You should consult with an attorney familiar with the Internet,
trademarks and the laws prior to registering your domain name
as a trademark.
For a complete explanation, visit:
http://www.uspto.gov/web/offices/tac/notices/guide299.htm
As stated by the United States Patent and Trademark Office,
http://www.uspto.gov/
"A mark composed of a domain name is registerable as a trademark
or service mark only if it functions as a source identifier.
The mark as depicted on the specimens must be presented in a
manner that will be perceived by potential purchasers as indicating
source and not as merely an informational indication of the
domain name address used to access a web site." In other words,
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,
which provides products or services via the Internet.
If you're in the market for a domain name, you may want to consider
searching the Trademark Electronic Search System, http://tess.uspto.gov/bin/gate.exe?f=login&p_lang=english&p_d=trmk
prior to registering a domain name. By researching the trademark
regulations and knowing your rights, whether you hold a trademark
or a domain name, you may be able to avoid the possibility of
litigation.
Copyright © Shelley Lowery
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