Avoid Trademark Infringement When You Choose a Domain Name
How to choose a domain name and stay out of trouble.
In theory, choosing a domain name is simple. If it is memorable, pronounceable, short, clever, easily spelled and suggests the nature of the commerce on your website, you've got yourself a winner. But even if your choice is brilliant from a marketing standpoint, it may not be so smart from a legal perspective.
If you choose a domain name that conflicts with any one of the millions of commercial names that already exist, you risk losing it. And if you've put money and sweat into marketing your website and then are forced to give the domain name up, your Web-based business is likely to suffer a damaging, if not fatal, blow.
The rules for understanding whether a legal conflict exists comes from trademark law. Here are the basics you need to understand:
- Names that identify the source of products or services in the marketplace are trademarks.
- Trademarks that are clever, memorable or suggestive are protected under federal and state law.
- Trademarks that are descriptive and have achieved distinction through sales and advertising can be protected under federal and state law.
- One trademark legally conflicts with another when the use of both trademarks is likely to confuse customers about the products or services, or their source.
- In case of a legal conflict with a later user, the first commercial user of a trademark owns it.
- If a legal conflict is found to exist, the later user will probably have to stop using the mark and may even have to pay the trademark owner damages.
Customer Confusion
Applying these principles to your domain name selection, you are at risk of losing your chosen domain name if the owner of an existing trademark convinces a judge or arbitrator that your use of the domain name makes it likely that customers would be confused as to the source or quality of the products.
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