I have been reading and reading related topics and have finally decided to post my question..... what comes first.. the chicken or the egg? Or in this case... trademark or copyright? If I have used a name online since 1999 and someone comes along and uses a similar domain name later on do I have a course of action to claim the domain name? They just have it parked. Its not trademarked, but if I trademark it now would that change anything, or would it be too late? <---- me by the way... contacting the person has resulted in a offer to sell me the domain for $10,000.00
You can't copyright a name. You can only trademark it. So in this case, copyright is out. Trademarks need to be registered to get real protection (like copyright)... so if you had dog.com and someone else registers dog.net, they're probably not going to be held to be infringing. It's too detailed to get into here without knowing what the "mark" is that you've been using, but there's also the potential that the mark isn't even registerable (that it doesn't meet the criteria for a trademark).
It depends. It's too detailed to get into as jlgordon said, although there are a few limited scenarios where it's still possible depending on the situation. The MySpace.co.uk dispute can give you a few ideas. But again, it depends.
Trademarks are enforced by courts by asking the question if a consumer could be likely be confused and think that the upstart "dog.net" was the same as the established "dog.com" brand. So a website wit a strong online brand - let's say flickr would have a good case against someone registering flickr.info. A website with a weak brand or a generic name/words - e.g. digitalpoint.com would not have a strong case against digitalpoint.net
I thought I had read somewhere that it also depended on if someone is not using a domain, but just sitting on it? Is this true?
In a trademark case, someone infringes on a mark if their use creates a likelihood of confusion. If someone is simply sitting on a domain name, then it may be more difficult to show that their intended use infringes any mark, particularly if the mark is not distinctive (as flickr would be in montuno3282's example). For example, there are many trademarks with the word "apple" in them, so if someone registered and held "appleproducts.info" it would probably be difficult to show that the use infringed on any particular mark. You may also have read it in connection with a somewhat related issue of cybersquatting and possibly the ICANN Uniform Domain-Name Dispute-Resolution Policy. In both settings, sitting on a domain name has been found to be relevant in some cases.
It is possible to enforce your trademark rights without a trademark registration with the United States Patent and Trademark Office. However, having such a registration will give you presumptive rights to your trademark.
Well if anyone makes an ohreallymoney.net I am suing. I have had this name for ever! Are you people trying to steal it? NEVER!