Hello all, I own TechBusy.com, i searched on USPTO and there is no TM associated with it. I have created my blog which i will keep lifetime and update regularly. Suppose if some one register a trademark in Future, then in that case who will win?
Trademarks do not need to be registered. If you were the first person to use the mark for that particular usage, then you would have established rights as along as it didn't infringe upon a similar domain (as infringement doesn't need to be exact). It's impossible to eliminate all chances of an infringement claim.
I looked around and saw no TM use and a first use in commerce will prevent anyone else from ever acquiring a ®. {& 0174;} A PARKED page does not count as a first use in commerce and would lead to a potential trademark violation if someone was actually wanting to use it in commerce. This idea is being argued in the US Court in the Western District of Arkansas now. 5:2009cv-05151 ----------------------------------------------- It has not been before a Court yet. There is a simple insurance against it ever creating a worry, use it in commerce. I can tell you directly an easy way but do not want to do it on a forum. I have spent more time studying domain name/trademark law than any lawyer alive currently. I hate parked pages FWIW. I am NOT a lawyer and this is just an OPINION worth almost what it cost you to read. I think you are almost safe with your page now. ALMOST. .
"I looked around and saw no TM use and a first use in commerce will prevent anyone else from ever acquiring a ®. {& 0174;}" A first use in commerce does NOT prevent anyone else from ever acquiring a registered mark. The USPTO doesn't do a search for common law marks and a person would have to object to the filing or try to cancel the mark within 5 years of publication. After 5 years, the registration is final except in cases of fraud. "This idea is being argued in the US Court in the Western District of Arkansas now. 5:2009cv-05151" ----------------------------------------------- This isn't a lawsuit that was filed by an attorney, rather a Pro Se filing that doesn't present a valid legal argument. (It's "losing" not "loosing"). I don't think it has any chance in court, the best they could hope for is some token payment to limit the legal fees of the other party. Cases like this take years to work their way through the court system (assuming it isn't thrown out) and it will require vast sums of money. Having a common law trademark on a name doesn't give you exclusive rights to a mark, only a type of usage. Usage of the domain in a non-competing manner isn't infringement for a non-famous mark - and it appears the domain has already been purchased by another business who has filed for a federal trademark.
A first use in commerce CAN prevent a ® from ever causing a problem for a TM because a TM never expires while being used. It might result in a CONCURRENT use of the mark being allowed. A ® has protections a TM does not have. The Pro Se Plaintiff was allowed to proceed as a pauper and has a stronger case than Vulcan Golf against Google already. This case will not be about a "class" trying to make lawyers wealthy through legal fees. It will be about principle. A severely brain damaged Plaintiff I may be. The defendants will face a much harder time before a jury in Arkansas than they might otherwise. Read the case past the unspelled words. The Jury will. NameMedias.com
"A first use in commerce CAN prevent a ® from ever causing a problem for a TM because a TM never expires while being used. It might result in a CONCURRENT use of the mark being allowed. A ® has protections a TM does not have." Again, that simply isn't true. The common law mark holder can have their rights to expand their business blocked or limited even though their mark was in use prior to the other party gaining registration. "This case will not be about a "class" trying to make lawyers wealthy through legal fees. It will be about principle. A severely brain damaged Plaintiff I may be. The defendants will face a much harder time before a jury in Arkansas than they might otherwise." While I sympathize while your personal situation, I fail to see the legal merits of your case. You let your domain expire. While you have a valid reason as to why it expired, it isn't a legal defense, and it wasn't because of anything the NameMedia did wrong. Their business is buying expired domain names and reselling them. They are under no legal obligation to perform a trademark search, and even if they had, you're not talking about a coined term that couldn't have a non-infringing usage even if you had a registration on the mark, which you didn't. Adding Google to your lawsuit and demanding millions of dollars in damages based was just plain crazy. You should really move on and not let this eat you up inside. This isn't a case you are going to win and don't waste years of your life over a domain name. Move on and don't let it consume you. You really shouldn't be posting about your case on a public forum. Everything you post can be used by their attorneys against you.
A mark registry or ® can't limit the use or even the expansion of a TM. A first use in commerce of a TM will trump a ® EVERY day before a jury of commoners. Juries are usually commoners and my jury will have nobody with a parked domain. Not one domain name speculator! There was once no DUTY to conduct common law TM research like you said. . . but. . . THERE IS NOW! {38 U.S.P.Q.2d 1369; 80 F.3d 749} http://www.altlaw.org/v1/cases/1048378 Consider it free legal research. My registration did expire while I was much more incompetent than I am now. I was not even my own legal guardian and my guardian would not seek legal action at the time. I contacted NameMedia Inc and advised them of my distress first while I was in a hospital I have witnesses who will testify of my distress and frustration at the time. I have no proof of the first email I received besides these witnesses because I was using a notebook computer in intensive care or similar. NameMedia Inc legal was made aware two additional times before NameMedia Inc sold one of the domains for $2,300. NameMedia Inc asked me to bid over 2600 or 2700 for the domain they were cybersquatting. I have email from a NameMedia VP and intellectual property attorney to support these two distresses and I have a police report for a third distressing email harassment that NameMedia Inc sent after aware of this suit and before NameMedia Inc starting trying to hide evidence at the Internet Archive Inc. Short Legal merits explanation for NameMedia Inc. =================================== 1. I did not maintain registry of two domains while an incompetent. 2. In 2004, I joined Photo.net and started promoting my figurenude art. 2. The domains had very strong prior uses in commerce as evidence will easily show. 3. NameMedia took the domains when they expired without conducting even rudimentary trademark research. {A business that buys domains that expire has an additional DUTY to verify no common law TM use.} Even Spider Man's dad said, "With great power comes great responsibility" and I think a jury will agree. NameMedia Inc makes around fifty-sixty million a year selling domains and should pick them a little more carefully. 4. NameMedia purchased Photo.net in 2007 and deleted my account after this case was started. 5. NameMedia Inc continues to display my work in violation of my copyright. This continues even after realizing that I was an incompetent and incapable of giving a permanent license to show them like is in their Terms now. See it online at now Photo.net/photos/CurtisNeeley I can't make it a link. How hard is it to drag and drop? They are ALL nude photographs. You can see me shooting one from a wheelchair back when I still had legs. photo.net/photodb/user?user_id=979825 6. Failing to return the domains and refusing to delete the photographs when made aware of the situation was malicious and intentionally distressing. This will support HUGE PUNiTIVE damages. ===================================== Short Legal merit explanation for Network Solutions Inc. ===================================== 1. Both of my domains were extremely strong TMs. 2. My trademark was violated by Network Solutions in exactly the same way they current do to others every day as a business policy. See microsoftrewards.com today. It expired 17-oct-2009. 3. Network Solutions advertised that my registry was about to expire and advertised them as if they were their own inventory like you see being done with the one above and thousands more every day. 4. Network Solutions advertised private information about my TMs. I have spoken to Network Solutions and received a claim of a detrimental reliance on ICANN Inc. Network solutions claimed they are required to advertise the expiration dates by ICANN Inc as all registrars are. ICANN Inc advised me that this was fraudulent. Short Legal merit explanation for Google Inc claim ============================= 1. I had a strong TM on two short domains. 2. Google Inc conspired to license them to function as deceptive advertisements. A visitor might have been sleepy and looking for a "Spot to Sleep", or hotel on their next vacation when they typed in sleepspot.com. This will land them on a page licensed from NameMedia to try and sell ads to display them as if they had searched from a Google Inc search engine. Go to sleepspot.com and protest-click a few ads. I do every day if I remember. 3. Google AdSense for Domains is the Google Inc name for a fraudulent business policy that attempts to license EVERY domain to turn the address bar of a browser into a Google Inc search request by licensing every possible type-in domain. This is exactly why they licensed two of my domains. 4. Google Inc uses a self serving complaint form to dismiss and insult TM owners like me who complain about a TM violation. 5. Google Inc conspires with NameMedia Inc and Network Solutions Inc to create a false demand for every single domain. A parked ad/spam page is a fraudulent advertisement. Read the Vulcan Golf case where Google Inc licensed wwwvulcangolf.com. Google inc will soon lose that case. They even argued successfully that a TM violation requires too much individual research to allow a class to be certified. A Vulcan Golf lawyer or other party even cybersquatted several sites like vulcangolfclub.com and a list of other obviously infringing domains. Google paid "Vulcan" for two of these pages without knowing they were gathering evidence but this was after Vulcan v Google had begun. I agree that TM cases require too much individual research for a class. Google Inc should be very embarrassed and somebody should lose their position since Google did not pay the tiny amount that was requested by the Plaintiff. A million dollars is not even 1/100 of the Google Inc unjust enrichment due to their fraudulent licensing all short domains. Punitive damages must PUNISH. The amount they asked for is trivial and an acceptable license fee for the browser address bar. My reservations software was better than is used currently by anyone. It was faster and more reliable than any Database. It still is! I still have the source code but it is too complicated for me to get to execute. I built CIRS with a great deal of internal errors and dead-end logic that would keep a programmer thief from reverse engineering it. I have scores of witnesses who saw me work on the software for over three years almost constantly. I now know how its principle of operation works but the four-six programs that execute at the same time will take several years to reconstruct with my damaged brain. I do many things besides this. I appreciate your sympathy. You sounded almost like an attorney? I suggest you read my case and my interrogatories. It requires only the type logic that would be required to determine the number of marbles you have in one hand if you are told that the contents would add to one other marble to make a total of three marbles. In short; X + 1 = 3 defines X precisely. I do not care if NameMedia Inc, Google Inc or Network Solutions read this online. I will refuse any amount less than ten million. 9999999.99 will only be an insult. Why does it matter if I publish that one plus one is two? Read my case for a more exact and concise demonstration of my case "merits". I read the portions of the Vulcan Golf v Google case that did not involve the RICO class claim. Perhaps you should. If you own GOOG you should read it and my case and protect your assets. My lawsuit has already established that it is NOT frivolous. NameMedias.com is not the NameMedia Inc website but you will see my case online there completely for free. Google NameMedia or Yahoo search or Bing search them to see how quiet I am trying to be about my lawsuit? CurtisNeeley.com/NameMedia/digitalpoint.com-1599477.pdf This post as a signed and unedited PDF.
A lawsuit being accepted for filing does not constitute a finding that it isn't frivolous. You're wrong on expansion of common law mark usage. Common law trademark rights are limited to the geographic area in which the mark is used. The case you sited does NOT state that a trademark search must be done. It implied that in certain cases, the failure to conduct a search my qualify as evidence of bad faith. As far as I know, there is no case law that states a trademark search is required to avoid a finding of willful infringement. This is a moot point in your case because there was no infringement upon any usage of common law rights you may have had as a photography site. There are MANY classes where the domain use wouldn't constitute infringement, such as the new owners current usage. You did not have broad all inclusive rights to the mark even if you had registered it. Even if they had conducted a common law trademark search, it wouldn't change anything in their ability to register the domain and offer it for sale. Offering to sell the domain for such a relatively small amount is certainly not evidence of anything - especially cybersquatting. Selling expired domains is their business - they didn't target you in particular. I feel bad for what happened to your domain, however, IMO your case for infringement doesn't stand the slightest chance of prevailing in court, and as far as $10 million dollars in damages - well that's just utterly ridiculous. I've stated my opinion and am not going to argue with you any further.