You've developed a product or service with great potential, secured the pertinent trademark and are ready to play the marketing game. You know that among your primary marketing and branding assets will be the right domain name. So what do you do when you log onto a domain registration site only to find that the name you want is already taken.
Depending upon the situation, you may be out of luck to a certain degree. That's because domain names are not trademarks. Rather, domain names and URL addresses are much like telephone numbers in that legally, they're simply unique strings of characters that correspond to particular web content. Among the issues you may face in securing a domain name are:
- Cybersquatters: Unfortunately, there is a huge business in buying up and essentially hoarding domain names, waiting until someone with a product or service of the same name comes along with a little desperation and a lot of cash. The cost of registering domain names is low, while the potential payoff can be significant. If your budget allows and you're insistent upon a particular already-registered domain name, you may be forced to pay up.
- Fair use: Understand that even if you're the clear winner in potential trademark dispute, there may be some instances wherein another company can use your name via fair use laws. Japanese automaker Toyota learned this when a federal court found that a used car seller did not violate unfair competition laws by using the domains www.buy-a-lexus.com or www.buyorleasealexus.com.
- Same name, different product or service: Delta Airlines and Delta the faucet manufacturer operate under the same name, but nobody is going to confuse one with the other. Still, only one was able to secure the coveted Delta.com domain name. The other opted for DeltaFaucet.com. If your product or service is marketed under a similar name as another company or brand, you'll need to assure that your offerings are in a fully different category, or you may need to consider changing your name.
Still, you may have options. First, before choosing a name for your product or service, have an attorney conduct a full search to assure that the name and domain you want won't violate an existing trademark. Once you've settled on a company or brand name, be proactive about securing the domain names you believe you'll use early, and don't stop with the top-line .com. Also register the accompanying .net, .biz, .us, etc. Yes, the fees add up, but they may help save you much more later. Be sure to look into the upcoming .trademark and .genericterm options as well.
Once your business is up and running, if you find that a domain name registrant is using a URL that legitimately is confusing potential customers and is being used in bad faith, get legal counsel. You and your attorney may be able to stop the user via the Uniform Domain Name Dispute Resolution Policy ("UDRP") or the Anti-Cybersquatting Consumer Protection Act ("ACPA").
For help in choosing, securing and protecting your trademark and domain name, contact Orlando's Daniel Law Offices at 866-37PATENT.