How is it that sites like www.ihatemicrosoft.com can stick around? I would have thought domains like this would be easily shut down by the trademark holder. Reason for my curiosity is I want to launch a website that is an alternative to a well known website. So, say the current site is NetFlix (which it isn't) and I wanted to start NotNetFlix.com ... am I in danger of NetFlix being able to shut me down?
I would think that it is ok because Microsoft is a public company in the public eye and this owner is simply stating is displeasure. Where the owner would get into trouble is if the owner stated false information about the company. Also the site appears to have commercial features so he or she is not conducting commerce off another's trademarked name. Just a thought.
As to (notnetflix), you are always in danger of going to court, even if the law is on your side. The question would be what are you going to do with the domain? If your content just talked about your displeasure with service you received, you might be ok. Of course, seek the proper lawyer to find out beforehand. The other question is why? As in the I hate site--who cares? It serves no purpose at all except to illustrate an adolescent point of view. I did not see any factual data about something MS is doing wrong. I would also wonder how a judge could distinguish between a domain being: "Idontlikestarbucks.com" and the title of a page on blah.com being: "I Don't like Starbucks" To deny the 2nd example is an obvious violation of the 1st Amendment (in America) and conversely the first example is simply an extension of that. I think the commerce issue looms large.
What you need before you invest time and money is a real trademark lawyer. There are some cases on this - including some recent cases involving PPC bidding with trademarks - and before you invest a lot of time and money for something where the trademark issue is this critical, it would be wise to talk with someone who is up the curve on those cases. It is a very specialized and technical area of the law, so don't go to a generalist. The basic test applied to whether you are violating someone's trademark is a risk of confusion test - could someone think they are doing business with, say, NetFlix, when you really have nothing to do with NetFlix. While this might seem straightforward, what risk of confusion means is very much a legal term of art, and in my limited experience it does not always mean to trademark lawyers and judges what it might mean to normal people on the street. You need a specialist lawyer who knows how that test is applied in the specialist courts to tell you what your level of risk is. And there are other tests, including some that I, as someone who does not really know this area of the law, remain unaware of but which might control your case. This is not academic, because if you are messing with a well known brand, your chances of getting sued are pretty high. If you have a trademark and don't defend it against infringement, you can lose it. That makes real businesses with a lot invested in their brands wary of people infringing, and quite often they are quick to write a cease and desist letter or file for an injunction. In other words, if you are on the wrong side of the line and they notice, or even close to the line and they notice, you might find yourself looking at a court complaint demanding that you show cause why your site should not be shut down - and with maybe 48 hours for you to pull together a legal team and file your reply in court. That can be a lot more expensive than hiring a trademark guy up front. Google, for example, is a company that has been really aggressive on this. I think it was Booble.com that they went after when Booble parodied their look and feel. The reason Google didn't laugh and look away was, I'm guessing, because their lawyers told them that the right policy in issues like this was to aggressively defend their marks so they would not lose them. Once again, this is not legal advice, I am not your lawyer, and, as I stated above, if you want reliable advice you really need to be talking with a real trademark lawyer familiar with all the actual facts.
You can use the domain names in issue so long as the site continues to be a non-commercial legitimate criticism site and nothing more. For more infor look here: http://www.arb-forum.com/domains/
Good stuff. Likely my intended use would be more commercial and less commentary/review/opinion oriented... and so that probably answers my question regarding whether or not I would be danger of having the domain taken. Thanks for the responses.
Dont sell t shirts or anything, and you'll probably be jsut fine. Also, it doesnt cost you anything to defend should they take action, unless you hire a lawyer. I went through this myself earlier this year. And won.
It may not cost you anything to defend in ICANN, which is an arbitration setting, and totally separate from any government or any court system. If they go to court instead (and they could, and might, if you are in a jurisdiction they can get to easily and they want an immediate order telling you to close the site down while ICANN sorts out who should own the domain), you will probably need a lawyer. It would be very unwise to go into court against the kind of firms I used to be with - the kind of firms that big companies will hire - without someone at your side who knows the drill. In practical terms, how big your risk is all kind of depends on who it is that owns the trademark, and how aggressive they want to be and can afford to be in protecting it. A lot of the clients I represented, which were mostly big companies, would send a cease and desist letter first, and if that did not work, head straight to court to get a temporary restraining order and an injunction ordering the infringer to stop using the mark. Taking the domain away through ICANN would have been an afterthought after we slapped you around in court. Most companies don't have the deep pockets and tens of millions invested in their marks that really big companies do, so that can vary, but it is still good to remember that ICANN is not the only possible playing field. In the courts, while commerce may be a consideration, the real consideration is going to be whether people can get confused in a way that damages the mark or misleads them. A non-commercial information site on food poisoning called McSalmonella with some golden arches on its logo might, for example, get the active attention of McDonald's. Once again, I am not the lawyer for anyone here or anyone reading this, and this is not intended to be legal advice. As always, if you have a legal problem, hire a real lawyer and make sure she understands all the specific facts of your situation. What part of Chicago are you from? Haven't been there for a while, but we still have our house in OldTown.
I would say to contact the boys over at AllstateInsuranceSucks.com. They have been in a constant legal battle for years about their domain name. The ONE single reason they have been able to sucessfully defend themselves is that they are non commercial. That seems to be the crucial defining factor, are you going to try to profit from the use of the domain name? If so, I would say save yourself the court battle and not to risk it. http://www.allstateinsurancesucks.com/
Don't use somebody else's name for profit (just to echo the other replies). Companies like Monster Cable are notorious for going after anyone and everyone that has the name "monster" anywhere in there company name. In fact, if you go to monster.com (the job website) you will see a little credit to Monster Cable at the bottom of the homepage because Monster Cable controls the rights to their name.
Wow! The example of monster.com (huge billion dollar publicly traded company) having that footer link to monster cable is crazy. I mean, there's no way the public could be confused that monster's site is somehow monster cable. Excellent find/example.
Another good example is Realtor, The National Association of Realtors will and does go after anyone who uses their trademark name in their website domain name. I have seen other real estate agents have these domains for a year or more and as soon as NAR finds them or it is reported they file a motion with the courts to have the domain shut down. Also to be honest it is not about really who owns the trademark, it is about who has the deeper pockets. If any name is trademarked I would not use it. Would it be worth paying an attorney 30k to 50k just to find out if you have a case. The total cost of fighting a trademark issue will run you in the range of around 200k depending on the company who owns it. Usually when big companies find someone misusing their trademark they are notorious for delaying hearings with the filing of motion after motion just to increase the cost that the defendent will incur. From a legal standpoint, you would be hard pressed to win a case of that nature, federal law is clearly on the side of the trademark register. The information that was provided here by another member about if the site is for profit or not is incorrect. It does not matter if the site is for profit or not. This past year alone I know of a case that Century 21 filed against a person who had a website that was spoofing their name, Century 21 was awarded damages and had the site removed. The trademark holder owns the rights to that name and can allow or disallow anyone from using it. As the old saying goes its only illegal if you get caught, if the trademark holder doesnt choose to pursue the violation of their trademark then you have nothing to worry about, if they do, get ready to mortgage everything you own to fight it.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rulesâ€) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.†Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.
The reason that they can have a "ihatemicrosoft" is the "fair use" exemption in US copyright laws. The "fair use" exemption to (U.S.) copyright law was created to allow things such as commentary, parody, news reporting, research and education about copyrighted works without the permission of the author. That's important so that copyright law doesn't block your freedom to express your own works -- only the ability to express other people's. Intent, and damage to the commercial value of the work are important considerations.
lots of people use trademarks in their domains, as far as i know it could hardly affect you. One of my friend has sites who has some major trademarks in the domain and he never faced any problem. So nitin i guess,U can use it.
I'm fairly sure that the "fair use" exclusion covers trademark as well, else we couldn't legally even post the word "google","microsoft" etc. But yeah, you should probably consult a legal rep before you sink alot of money into it.