1. Advertising
    y u no do it?

    Advertising (learn more)

    Advertise virtually anything here, with CPM banner ads, CPM email ads and CPC contextual links. You can target relevant areas of the site and show ads based on geographical location of the user if you wish.

    Starts at just $1 per CPM or $0.10 per CPC.

Domain name question

Discussion in 'Legal Issues' started by DNM10, Jun 9, 2010.

  1. #1
    I plan on creating a tutorial site for a certain software product ( from a major company). My question is would something along the lines of,
    free"product name goes here"tutorial.com be considered trademark infringement or copy right infringement. I don't plan to sell or distribution the product on the website and the material on the site will be original, as i plan to create video tutorials. There will however be advertising to cover hosting/domain costs and possibly depending on how the site does a profit. Could i be slapped with a lawsuit?
     
    DNM10, Jun 9, 2010 IP
  2. attorney jaffe

    attorney jaffe Member

    Messages:
    241
    Likes Received:
    12
    Best Answers:
    0
    Trophy Points:
    45
    #2
    Using a trademark that belongs to another entity in your domain name in order to "profit" from their reputation is a violation of trademark law. (Understand that you can profit in other ways than just money - driving people to your site is a way to profit from someone else's reputation.)
     
    attorney jaffe, Jun 9, 2010 IP
  3. DNM10

    DNM10 Peon

    Messages:
    2
    Likes Received:
    0
    Best Answers:
    0
    Trophy Points:
    0
    #3
    Doesn't that mean any website about any product that is not owned by that person could be considered as trademark law violation or does it only apply to the domain name. I've seen many sites about software products where the product name is used in the domain name but the website has no public link or association with the creator of the software. Some of these sites are pretty big as well, with forums that have well over 100k posts.
     
    DNM10, Jun 9, 2010 IP
  4. contentboss

    contentboss Peon

    Messages:
    3,241
    Likes Received:
    54
    Best Answers:
    0
    Trophy Points:
    0
    #4
    The prev poster is right - generally, it depends on how vociferously the trademark holder likes to police the use of his marks. Having said that, even if they don't appear very defensive, there's nothing to stop them *becoming* defensive later, so generally,using someone's trademark without permission isn't usually a good idea. There's even a thread on here somewhere from some poor guy who is going to have to hand over a domain to the trademark holder, even though the sole purpose of the domain is to generate affiliate sales *for the trademark holder*. Common sense and the law aren't always necessarily equivalent.
     
    contentboss, Jun 9, 2010 IP
  5. Pixelrage

    Pixelrage Peon

    Messages:
    5,083
    Likes Received:
    128
    Best Answers:
    0
    Trophy Points:
    0
    #5
    Yes, it would be considered a TM violation.

    For instance, I'm an affiliate of LegalZoom. I wrote them and asked for permission to use their business name in a domain name for a review site, and they said no, but thanked me for asking before going ahead and doing it anyway. I think that is the case 99.9% of the time. Unless you're a franchisee or licensed reseller, you'll never get permission to use a company name in a domain. I don't blame them, either.
     
    Pixelrage, Jun 10, 2010 IP
  6. xanth

    xanth Active Member

    Messages:
    328
    Likes Received:
    13
    Best Answers:
    0
    Trophy Points:
    60
    #6
    This makes plenty of sense. In fact, the point of the trademark is to make sure that the owner gets 100% of sales, not that some joker can use the company's own trademark to get a piece of the action using that trade name. In fact, they are using that domain because they believe people are looking for the site and know about the company and its product.
     
    xanth, Jun 20, 2010 IP
  7. fharez89

    fharez89 Peon

    Messages:
    29
    Likes Received:
    0
    Best Answers:
    0
    Trophy Points:
    0
    #7
    for installation of images such as games
    seemed to violate copyrights
    you better put on a free but well-known
     
    fharez89, Jun 28, 2010 IP
  8. Kalyse

    Kalyse Peon

    Messages:
    1,221
    Likes Received:
    24
    Best Answers:
    0
    Trophy Points:
    0
    #8
    "In fact, the point of the trademark is to make sure that the owner gets 100% of sales"

    This is completely wrong. The primary function of a trade mark is to act as a mark of origin, which is to say that it is capable of designating where the goods or services originate from. There are lots of other secondary functions, like protection for the consumer, in order to make sure that they are purchasing from the designated brand.

    Trade marks serve to protect the flow of information, the information being that actual sign or mark. There are lots of situations where you can use another proprietors trade mark in the course of trade. Take comparative advertising for example, which I believe it allowed under the Lanham Act (I'm UK if you haven't discovered by my spelling of trade mark), also take compatibility issues, where you say that your product X is compatible with product Y. These are perfectly legal uses of another proprietor's trade mark.

    Anyway... to your question. I would say that because you are using a trade mark which is identical to another proprietor's, in the course of trade, in order to make use of their reputation, which has the potential to dilute or contaminate their sign, then it would be infringement. I think it's pretty close though, because you could argue that there is no confusion in the eyes of the average consumer that the two trade marks come from the same undertaking.

    I would just go ahead and use it anyway, then if I received a letter from the proprietor I would just say explain what I've said above (but in opposite).
     
    Kalyse, Jun 29, 2010 IP
  9. xanth

    xanth Active Member

    Messages:
    328
    Likes Received:
    13
    Best Answers:
    0
    Trophy Points:
    60
    #9
    I'm not completely wrong - you've just missed the point. The OP didn't want a dissertation on trademark and the issue is precise. The OP clearly discusses the fact that there isn't a connection with the trademark owner - nobody being confused as to the origin. This is more about "aren't the affiliates are doing "good" for a trademark holder since the affiliate is making the company look good, not tarnishing their brand, providing "value added", etc.?" The answer is that even if the actions appear to be of a benefit to the trademark owner, that company still has a right to say whether anyone will get a "piece of the action" as an affiliate and how much it is willing to give away and to whom. That's what I'm getting at - it's their decision.

    Now with regard to your legal advice, do you think the company doesn't know what the website owner has been up to by using their trademark in their domain name for "good" purposes for the company? How many times have you actually dealt with a trademark owner? It takes time and money to send a Cease and Desist letter, which is usually from a lawyer / barrister. If you got one, it means that they want you to stop, not have a negotiation about how you're increasing their bottom line by $42.53 or 60 quid, whatever. Using someone else's trademark is a risk. Some will police it like there is nothing else on the planet more important (e.g. Disney or the English Premiere League.) Others will let things slide with a little leeway, especially if there isn't confusion. The reality is that it's all about how vigilant the trademark holder is regarding their mark. It's a gamble you take - it may or may not pay off.
     
    xanth, Jun 29, 2010 IP
  10. Kalyse

    Kalyse Peon

    Messages:
    1,221
    Likes Received:
    24
    Best Answers:
    0
    Trophy Points:
    0
    #10
    Yeah, I agree. The advice has always got to be don't do it.
    I would say just to establish a site which doesn't use the TM, but if he wants to run the risk then its sometimes worth testing the water. Even if the properietor comes back to him and says that he is using their TM, he could then just respond by saying that their essential function as a trade mark is unaffected by his use, and the average consumer is not confused as to the origin of any products or services by his alleged infringement.
    Moreover, the use of the trade mark is actually neccessary in order to inform the public what his product actually is. Without using the trade mark, people would not know about the compatibility of his tutorials - and trade marks should not serve to act as a monopoly right (in that sense).
     
    Kalyse, Jun 29, 2010 IP
  11. coldcoder

    coldcoder Well-Known Member

    Messages:
    954
    Likes Received:
    6
    Best Answers:
    0
    Trophy Points:
    130
    #11
    yes it is allowed and totally legal since you ain't offer downloads of such tools as warez.
     
    coldcoder, Jul 15, 2010 IP
  12. xanth

    xanth Active Member

    Messages:
    328
    Likes Received:
    13
    Best Answers:
    0
    Trophy Points:
    60
    #12
    Completely not true. Sorry, those are the facts.
     
    xanth, Jul 15, 2010 IP