does anyone have experience fighting porn sites? A porn site is using my client's name- what legal actions can we take to have that site taken down and try to prevent other sites from using her name? As a webmaster, I know all the advertising tricks and scams so I know its nearly impossible to weed out keywords such as my client's name once its put on lists for webmasters to use... Please give me any suggestions or tips of you can on dealing with these problems. Thanks.
Generally speaking, a name cannot be trademarked. The exceptions to this are when the name is suggestive, like having a toy truck named Jim. In this context, "Jim" does not describe a truck. When a name is attached to an actual person, then the name is descriptive. Descriptive names are much harder to trademark. Even if a trademark for a personal name is successfully applied for, it may not hold up in court. Descriptive marks must obtain a secondary meaning for trademark to apply. Secondary meaning in this context means that the person is famous (the general public associates that name with that person). The definition of famous varies from state to state. Some states say that the name only needs to be famous in the market the person works in. Other states say the name must be generally famous (random people on the street would know the name and the person). Uniqueness has nothing to do with it (though commonness can). What that means is that the name "Starchair Mustyleg" doesn't get any benefit because it is so different, but "John Smith" gets looked at harder because it is so common. However, since it references the work she has done I would assume that this is not a given name. The same rules apply to stage names, but stage names are often easier to get trademarks on. Trademarks on stage names are usually limited to specific industries (music, acting, etc...) and are not blanket trademarks (though nothing is really). Since you don't say what her name is or what work she has done, it is hard to say if they are using in inappropriately. Is she in the adult industry? Did you check for porn stars using that name? What about close spellings or synonyms? It is a common practice for adult stars to use names that are close to another well-known person's name. For example, the USPTO accepted a trademark application for Mary Carey (which Mariah Carey is fighting on the basis that it is close to her trademarked name, and it doesn't look likely that Mariah will win). Finally, how are the sites using the name? You don't specifically state, but from your statement about "weeding out keywords" I would guess they are using them either in the metatags or advertising campaigns (like purchasing trademarked keywords for AdWords). If that is how they are using the name, that could be bad news. Recent court decisions have not been consistent, but they are leaning towards (and have specifically allowed in several cases) allowing companies to use trademarks as keywords for the purpose of search engine positioning and contextual ad campaigns. http://www.theiplawblog.com/archives/-trademark-law-settlement-in-keyword-trademark-dispute.html
thanks bluegrass! that helped a lot. sorry i didn't feel comfortable saying much more. that link was also very helpful!