Can i create a site with a brand name of a company

For instance we all know there is a company mcdonald and they sell burgers.
can i create a site like mcdonaldburger.com or .net as this name is affiliated to there brand name.

i have heard that facebook has sued a site called teachbook for using their name in it.

Can the company proceed against me in court for this.
I am residing in india and the company is also india based.

Need legal assistance, please help

 

Let me say I don't know Indian law at all. But if that was in the US you would be in violation of their trademark. The law can be a little tricky depending on where the company's do business. For instance if xyzwidgets sold their product in state A and you registered xyzwidgets in state B you may be okay, but that depends. But if you are basically taking their name or something deceptively similar in a place where they do business they will likely win. Of course you if use xyzpools that is an entirely different story.

 

No you can't.
If you promoting their products then you can but if thinking of using that domain for other products or their competitor then you might find yourself in trouble in future.

 

i am not going to create a business with this site. what i am to do is create a basic review and provide details about that company and will provide a detailed business process of how they work..

I will also mention that i am not anyway affiliated to that company in any manner.
Also my site will be created only to help them gain more trust.
Is there anything that i should need to care of like disclaimers or anything that you think will be essential in this regards.

Thanks for your help friends.

 

You can't do it without express permission from the TM holder, period. Including a trademark in a domain name is infringement - especially if you are talking about a famous mark or the site will have reference to the trademark holders product or service (even similar). Putting a trademark in a domain (adding words, letters, or numbers is still infringement - and so is phonetic or misspellings). If you do it, you can be sued for damages, forced to turn over the domain, and if the trademark is registered, you could be ordered to pay treble their legal fees (which could easily be hundreds of thousands of dollars). A disclaimer doesn't get around trademark infringement when you include their mark in the domain. Even if you think your site will "help them" it isn't a legal defense - they own the mark for their usage and the TM holder gets to decide who gets to use it.

 

mjewel is correct. A trademark is a trademark is a trademark. You cannot assert any ownership over it at all such as owning a domain with it in it. The owner worked long and hard and spent a lot of money developing the reputation. You should not be able to siphon their customers off because of a similar name...even if you then essentially sell the customers back to them.

 

Not without violating their trademark.

 

Gonna have to disagree here ...
I can't say what the situation is in other countries, but here in the UK you can do pretty much what you like. Basically the owner of a domain name is just that - the owner.
It is not legal to use a companies logo or branding of course, but there's nothing to stop you from registering a domain like 'mcdonaldsucks.org and putting whatever you like on it. Obviously there may be legal consequences related to the content of such a site, but using the domain name would not be an issue.
I have personal experience with this exact scenario and with one of the biggest of 'em all - ebay.
A while back when ebay was really pi$$ing people off I registered a domain name with the word 'ebay' in it in order to set up a sort of anti-ebay website, which I did. Well it wasn't long before ebay's lawyers where on to me making allsorts of threats ... under us law yada yada yada we will kill your dog etc.
Firstly I pointed out to them that as a UK citizen I am required to comply with UK law, not US law. Secondly I pointed out to them that I could provide dozens of similar websites (ebay and other) to show precident, and thirdly I pointed out to them that they could bite me.
They then changed their approach (bullying having not worked) and said that if I let the domain name go when renewing came around, they would 'forget about it'. My reply was simple - see this hand, it is mine - see this domain name, IT is mine. If you wanted this domain name so badly you should have registered it - you didn't and I did - now it's mine. I WILL be renewing it and I will use it as I see fit.
All that was about 3 years ago and guess what - I still own the domain name - ebay went of to sulk in a corner and no one got sued by anyone.

The big thing is this - they (whoever 'they' may be) will shout and scream and threaten and mouth off, and it's easy to get intimidated into doing what they want. DON'T let them get to you, but DO check the legal status of your actions in the country where you are carrying them out - not everywhere will be the same as the UK.

 

thanks for your reply. i am going through some legal issue forums currently. Also do you think the .tld extension also plays an role in the issue.

For instance if the domain is .co.in, it is an indian top level domain
or if i buy .net or .com it will have different legal aspect as compared to indian market.

Also does any one can tell me if i hide my personal details does it will help me.

 

You're wrong.

#1 It doesn't matter what the law is in the UK (and their trademark law is very similar anyway) ICANN is a US company and follows US law.

#2 "Sucks" type of sites can fall under fair use/free speech as long as you do not monetize the site. The "sucks" removes the likelihood of confusion.

#3 Other sites using "ebay" is not a legal defense. Ebay gets to decide who they go after and who they don't. If they decide to file a WIPO, they get the domain. If they decide to also sue you, you are looking at six figures to defend your position.

#4 If you want to see what ebay is capable of doing, read up on their case against perfume bay. The owners spent close to a million dollars in legal fees and still lost their website.

#5 Your particular situation means nothing. Every trademark holder is different. Just because a particular company does or doesn't do something to one person, doesn't mean you won't be sued. It's trademark infringement, period. Your argument is nonsense - it's akin to saying you stole a car and didn't get caught, so therefor anyone else can do it without worry. You obviously have never gone to court over IP issues. I have been in several dozen court cases and can tell you first hand that you will spend hundreds of thousands of dollars in legal fees if a deep pocket wants your domain or doesn't want you to use their trademark.

 

The TLD does nothing to keep it from being trademark infringement. Hiding your personal details will not help at all. Many times all it takes is the trademark holder contacting the registrar to get them to reveal the hidden details. If they don't, a simple court order can not only provide the details, but payment information and even IP address of the person who registered the domain. A trademark holder doesn't even need to notify you in advance of a lawsuit or a WIPO.

 

thanks mjewel for your help, really thanks a lot for helping me.
+rep for you.

 

@mjewel
I can't argue with any of that - all is probably true but all I can say is what my own experience was, and believe me they where not pleased, but they did go away.
One thing worth mentioning - one should always apply a 'whois guard' to any such domain - not foolproof but a damn good start.

 

If the company is yours you can, otherwise you can't. You might be Infringement

 

If you think that the site will be helpful for the company, why don't you call them to ask for their permission?

 

does that include the sub URLs too? Eg. www.flapperty.com doesn't infringe mcdonalds trademark. Does www.flapperty.com/mcdonalds ???

 

I am talking only about the domain name- especially when the content is related or similar to the TM holder (famous marks have even broader protection for usage), not page names, directories or sub-domains. A TM holder can sue for anything they feel is infringing upon the intellectual property. I know Playboy has even sued for use of their TM in meta tags.

 

thanks mj, +rep.

 

You should try getting permission. Worth a shot. Contact the headquarters. They will want a nice amount of information though.