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Domain Names and Trademark Law

If the domain name you chose is memorable, pronounceable, short, clever, easily spelled and suggests the nature of the commerce on your website, you've got yourself a winner. Your name is at risk if it legally conflicts with any one of the millions of commercial names that already exist. Also, registering your brand name with the United States Patent and Trademark Office (PTO) does not mean you have secured rights to use the mark as a domain name (or that your "rights" are protected for all time).

Trademark Infringement Suits

The vexing aspect to all of this is that a registered domain name could be challenged on the grounds of trademark infringement by someone who has a similarly valid trademark, but who may have not yet registered their trademark as a domain name. The basic issue raised is one of confusion in the marketplace involving brand names and products in the flow of commerce.

The rules for understanding whether a legal conflict exists comes from trademark law. Here are the basics you need to understand:

  • Names that identify products or services in the marketplace are trademarks.
  • Distinctive (clever, memorable) trademarks are protected under federal and state law.
  • Distinctive business and domain names usually qualify as trademarks.
  • The first commercial user of a trademark owns it in case of a legal conflict with a later user.
  • One trademark legally conflicts with another when the use of both is likely to confuse customers about the products or services, or their origin.
  • If a legal conflict -- called an infringement -- is found to exist, the later user will have to stop using the mark and may even be held liable to the trademark owner for damages.

Source Identifiers

The PTO will not permit you to register as a federal trademark any domain name of your choice. A domain name mark may be registered as a trademark or service mark only if the domain name acts as a "source identifier." It must be, in other words, more than a mere Internet address. "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."

Trademark litigation challenges to domain names raise a host of complex issues including whether a website is passive or active in a given state for jurisdictional purposes and, as mentioned above, whether there is actually confusion in the marketplace due to the existence and use of the disputed mark in commerce.

Mark vs. Domain Name

How can one decide whether to register a mark or domain name? How can one learn more in order to obtain the maximum protection available under existing law? Due diligence and common sense are most useful.

Note that, despite all of the issues raised, you are not required by the PTO to have a lawyer in order to register a trademark. There are business services available that perform local and worldwide trademark searches for name similarity. You could gain some insight into trademark standards simply by accessing the PTO's website. You can even search the PTO's database online.

It might be wise, however, to consult with appropriate legal counsel before investing time, energy, advertising, and stationary in a brand name/domain name/trademark that, if not properly researched, might be challenged, thus draining your business of valuable resources best applied elsewhere.

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