So you have a great idea for a domain name. It will make you millions and be the beacon by which an unprecedented amount of Internet commerce flows your way. You're excited. You go to a domain name registrar to perform a domain name search and, you guessed it, the name you want is already taken. What now? Don't worry, you have choices.
If you're like most businesses, you want .com at the end of your domain name. But as you may have surmised by now, many .com names are unavailable. However, the same choices may be available with another suffix. Some domain name registrars will even prompt you with the .net, .biz, .info or .org choices after they tell you that your .com choice is unavailable. However, read the caution note below to learn about the dangers of using a different suffix with a name that is already a .com name.
A domain name is reported as not available only if the exact name is already taken. For instance, if an availability search tells you that madprophet.com is already taken, you may find that "mad-prophet.com" or "madprophets.com" is available. If you are not wed to the exact form of your first proposed domain name, you can experiment with minor variations until you find an acceptable name that is available. But read the warning just below for reasons to use caution when taking this approach.
The fact that a slightly different name is available, or that a name is not available as .com, but is available as .net, .biz, .info or .org, doesn't necessarily mean that you can or should use it. Using a domain name very similar to an existing one may result in trademark infringement -- the violation of someone's trademark rights. If you infringe someone's trademark, a court might order you to stop using the name and pay money damages to the other domain name owner. For more, see Avoid Trademark Infringement When You Choose a Domain Name.
Domain names are bought, sold and auctioned like any other property. If the domain name you want is being used on a successful, actively maintained commercial website, chances are slim the owner will sell it to you. However, if the name is reserved but isn't yet being used, you may be able to get your hands on it for a price you can afford.
You can buy a domain name in a variety of ways. You can look in online classifieds, contact the owner directly and make an offer, make a bid on an auction website (ebay.com, for example) or go through an online domain name broker, such as GreatDomains.com.
If you are already in business and want to use your existing business name as your domain name, then you may have the upper hand in a dispute with someone who's already using the name online. (Not every business name is protected by trademark law, however. See Avoid Trademark Infringement When You Choose a Domain Name for more information.)
Under trademark law, the first person to use a trademark in commerce is considered the owner. So if you used the name to market your products or services before the domain name registrant started using its domain name, you may be able to prevent that registrant from continuing to use the name. (To learn more about what constitutes trademark infringement, see Enforcing Your Trademark Rights in the Trademark area of Nolo's website.)
If you are a trademark holder and you want to challenge the use of a domain name, you will first need to decide on a strategy for going after the registrant. You currently have three choices:
Use the dispute resolution procedure offered by ICANN. ICANN, the international nonprofit organization now in charge of domain name registrations worldwide, recently implemented a process called the Uniform Domain Name Dispute Resolution Policy (UDRP). This administrative procedure works only for cybersquatting disputes -- that is, when someone has registered your name in a bad-faith attempt to profit from your trademark. (To learn more about cybersquatting, see Cybersquatting: What It Is and What Can Be Done About It.) Compared with filing a lawsuit, ICANN's dispute resolution procedure is potentially less expensive (about $1,000 to $2,500 in fees) and quicker (just 57 days to resolution).
File a trademark infringement lawsuit. If you take the domain name registrant to court and win, the court will order the domain name registrant to transfer the domain name to you and may award you money damages as well. A lawsuit is always an option, whether or not you pursue ICANN's dispute resolution process. (For more, see Enforcing Your Trademark Rights in the Trademark area of Nolo's website.)
File a cybersquatting lawsuit. If you take a cybersquatter to court and win, you may get not only the domain name you want, you could also win money damages from the cybersquatter. (For more on cybersquatting lawsuits, see Cybersquatting: What It Is and What Can Be Done About It.)
To find the name and address of a domain name owner, you can use the "WHOIS Lookup" service at www.whois.net. Your search results will include a contact name, phone number, address and email address for the domain name's owner.
While we've offered some suggestions here, your greatest resource will be your own imagination. For instance, perhaps a simple letter demonstrating your ownership over the trademark, with an offer for small compensation or some other arrangement, is all that is needed to resolve the conflict. Or, you might reach an unconventional agreement with the holder of a desirable domain name, rather than meeting the stated purchase price. And of course, in the end, you might just throw up your hands and decide to go back to the drawing board and make another list of names. That's fine too. Be creative and the right solution will follow.