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Is it legal to have site name as time2ask.com , when ask.com is a registered company

Discussion in 'Legal Issues' started by sooribabu, Dec 14, 2010.

  1. #1
    Is it legal to have site name as time2ask.com , when ask.com is a registered company
    askkids.com ..etc..etc..
    SEMrush
    and suppose there is site geekinterview.com can i purchase and use geek-interview.com is this legal?

    help me
     
    sooribabu, Dec 14, 2010 IP
    SEMrush
  2. nifty87

    nifty87 Member

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    #2
    About your first question, I think you can do it. It is fairly clear that ask.com and time2ask.com are different, so ask.com should have no problem with it.
    But geekinterview.com and geek-interview.com look very similar and they might take action.
     
    nifty87, Dec 14, 2010 IP
  3. attorney jaffe

    attorney jaffe Member

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    #3
    The ask.com v time2ask.com is a close call. However, based on my reading of the domain name cases, I do not think a judge would allow it.

    The second question is easy - just putting a hypon in a domain name is a clear cut infringement.
     
    attorney jaffe, Dec 14, 2010 IP
  4. tech4

    tech4 Active Member

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    #4
    Your best argument would be:

    1-Your intended audience is the world wide web. You are not feeding off Ask.Com audience. Your sources are generated via...Google, Yahoo, forums, etc.,
    2-You are using a generic term to describe the nature of the business -therefore generic terms do not infringe on proprietor's business. The court cannot take away usage of generic terms, unless you are abusing it. You have the same rights as Drug.com, Ask.com, and Sex.Com in using generic terms.
    3- Should a computer company name "computer" stop you from using "ABC Computer" as your company? If it doesn't then the same could apply here. You are free to use generic terms, as they do not belong to anyone.
    4-You are not using proprietor business model or software, or knowledge/intellectual properties of a specific company. -It is your business not theirs.
    5-World wide web audience such as wikepedia, about.com, ask.com, yahoo answers.co, does not belong to any specific company
    6-The business model is not unique -you cannot be stop from running your business even if it is similar

    Basically your main argument is: Generic terms, business model being generic, and no proprietor stuff is taken. You have as much right as EBC Computer to name your company
    XZY Computer.

    At worse, you lose battle assuming your attorney say, "base on my judgement, I can't help you", then you would fire your attorney. Tell him/her to get lost.

    If you should lose, you will have to change your doing business as name. But I believe in a legal battle you will win. Unless you are not using generic terms, you use, mymicrosoft.com then its a problem.
     
    tech4, Dec 14, 2010 IP
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  5. attorney jaffe

    attorney jaffe Member

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    #5
    The post above makes some good points. However, I believe they over emphasize the importance of using a generic word in your domain name; especially when that generic name (i.e. ask) has a history of Internet usage prior to yours. Further, if your site is also a search site the courts could very well conclude you are acting in bad faith to profit from their brand.

    Finally, the statement that at worst you will lose and need to change your domain name overlooks the fact that a domain name dispute with ask.com would cost you about $100,000.00 in legal fees; to say nothing of any penalty for losing the case (i.e. judgments or paying the other side's legal fees as well.)
     
    attorney jaffe, Dec 14, 2010 IP
  6. tech4

    tech4 Active Member

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    #6
    Your defense:

    1- Your business model not ask.com model -You have a proven audience that you can claim is yours ie. Membership size
    2- You have been doing business as your business model since say 2000. You have a 10 years history or 2, whichever.
    3- Your business model is unique -You can patent it, Jeve or Yahoo can't say its their business model
    4- Your business model and company is registered or has employees and business expenses

    In proving the above:

    1) Ask.Com cannot sue you for doing business as your business unless you copy theirs
    2) Ask.Com will have to prove alot to take away your business name if you have a history and an audience.
    3) Again, go back to the generic terms and add to your defense the point above.

    At worse, you lose the name. You will win if you prove that you have a different model, unique, you have customers. Using a generic term here is absent minded, after you have proven the above. It would take alot jawbone to go against your proof above. You can decimate Ask.Com if they take you to court and lose. I mean, you can actually threaten to sue them for suing your unique business model, give them a really bad press. You will have alot of leverage once you establish differentiation.

    Once you prove that your business is viable and differentiate that from ask.com, they can't win.

    BUt if they prove, that your business is using their good name (by not differentiating) then you will lose.

    The point is simple:

    1) Generic definition
    2) Doing business as with history/customers/etc.
    3) Very important to differentiate

    Any lawyers will put a good fight for you. Or you can defend yourself, but you must prove the above that your business not a copy.

    If you can prove differentiation, it is nearly impossible for ask.com to take away your business or fine you for proprietor intellect that you develop.

    Any good lawyers will want your case, because its a good win for their record.

    Again this only applies to generic terms with proven business model, differentiation. Not copy of microsoft.com or usage of a proprietor name. A generic name gives you a lot of weight.

    But the best advice I think, will have to use a different name, just to avoid your time being wasted in court.
     
    Last edited: Dec 14, 2010
    tech4, Dec 14, 2010 IP
  7. sooribabu

    sooribabu Active Member

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    #7
    Thanks for your replies
    small confusion is
    giftshop.com is already there can i start gift-shop.com ?when both are selling the same stuff and both are competitors
    because both are just generic words it is not illegal?
     
    sooribabu, Dec 15, 2010 IP
  8. splitzer

    splitzer Peon

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    #8
    It would depend if giftshop.com is a registered trademark or something. But they are very close, so it might be a problem is your site grows.
     
    splitzer, Dec 15, 2010 IP
  9. tech4

    tech4 Active Member

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    #9
    Yes you can. Consider buydomain.com and buydomains.com they both sell and buy domain names, both setup registrations.
    Reasons? they are both generic wordings, does imply the nature of the business, therefore cannot be claim as exclusive.

    You have a pretty good chance of winning, as I said, if you set up your website differently that offer values (meaning something that people can buy or like that is different).
    If you website is just a copy, then its call ...a copy.

    It depends on how you set yourself up, how you do business.
    As generic domain names, they do not belong to anyone.

    Think of it this way. If cars.com is own by Mr. Millionaire
    Therefore sellcars.com, reviewcars.com, buycars.com need to be transfer to cars.com ? because a generic has been claim?

    Using the same logic, why is it similar? Because its a generic name, generic name that fits the business model does not infringe on any specific company. Had the name been Microsoft or Google then its an infringement on a specific entity. If it is generic, what makes it right for one owner to claim ownership of everything. There are hundreds of millions of names on the internet. Many are generic, does that mean, all ownership need to be transfer away and no one else can do business?

    -Again. It depends on your usage, how smart you are. If you are just using a copy, then its to your disadvantage, you must differentiate. Differentiate is a classic word in business. Basically it is what makes you different, so that you can claim is yours and not anyone else.

    Generic names cannot be claim.
     
    tech4, Dec 15, 2010 IP
  10. mjewel

    mjewel Prominent Member

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    #10
    Some of the points you make are valid, however, you vastly oversimplify the trademark dispute process.

    Generic/descriptive marks can be trademarks if the term has acquired a secondary meaning (Bank of New York).

    Many experienced IP firms will not take the case of a small business, especially when you are going up against a large entity. Law firms value getting paid more than a win.

    Even if you will eventually win, you can easily spend hundreds of thousands of dollars in legal fees - fees you will not likely be awarded. Spending hundreds of thousands of dollars to keep a domain that isn't worth $100 isn't a win in my book.

    If you lose a dispute against a registered mark holder, you can be ordered to pay treble their legal fees plus damages. Simply changing your domain name isn't all that can happen.

    Deep pocket companies use their financial position to their advantage all the time. It doesn't matter what is fair or right, what matters is how the court process works.
     
    mjewel, Dec 15, 2010 IP
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  11. tech4

    tech4 Active Member

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    #11
    If trademark holders were "Philadelphia Cheese", "Boston Consulting Group", and "Havana Confectionaries" ie. You don't have to pay them a dime for using generic description.

    Unless you copy their business model. They can only sue you successful if you use their goodwill or intellectual properties. Successfully. They can't ask for money, if you don't use anything of theirs. Using a generic name to do business does not imply exclusivity to one person or one entity.

    ie. New York Taxi, New York Cab, they both have New York in it.

    Trademark holders knows well, if they have chosen a term and brand it, they have a right to use, it exclusively. But if that term is a generic term, like Philadelphia, Boston, Newyork, or Havana it doesn't give them any rights more over another person.

    Again, Generic Names will give you leverage. You are not required to hand over generic names to any specific entity, even if they Trademark such terms as "Boston", "New York", "Havana" or even "Philadelphia" or "Sex". Yes they can trademark the terms they use if it has a history, but they cannot stop anyone from using generic terms, unless you are

    1)Abusing their good will
    2) Commit crimes, illegal or abuses something else
    3) Copy of their exact business model

    If none of the above applies, they have no power over you. Sure they have money, but its going to cost them more than just to settle with you. If you have a winning case.

    If you are just a copy ---or using trademark names which are not generic then you do have a problem.

    Let's say I have Havana.Me, its the same as Havana.com do I give it to the Havana Confectionaries or the Hotel Havana group?
    Who does it belong to? No particular group or individual.

    If the company have a right to use a generic term. You have the same rights as the companies to use generic terms, as long as you do not abuse your rights.
     
    Last edited: Dec 15, 2010
    tech4, Dec 15, 2010 IP
  12. mjewel

    mjewel Prominent Member

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    #12
    Well now you're just plain wrong - and rambling to the point of not making any sense. A domain name alone can be infringement regardless of what you do with the site.

    "Sure they have money, but its going to cost them more than just to settle with you. If you have a winning case."

    A deep pocket dropping a million dollars is nothing to them and there are TM holders who would rather spend a million than settle for nothing.

    What about a business called "Paradise Bay" registering "ParadiseBay.com" to sell perfume, what about "PerfumeBay" - or what about owning LH.com? You can never be sure you will when in court when it comes to IP law. What if you need a million dollars to fight to keep your domain and you don't have it? Do you think an attorney is going to take your "winning case" on contingency? lol - You can lose by not having enough money to fight the "other guy".

    It's obvious that you have never been to court in a trademark case and you should make that clear in your posts - i.e. "I have no actual experience about anything I post"
     
    Last edited: Dec 15, 2010
    mjewel, Dec 15, 2010 IP
  13. Dave Zan

    Dave Zan Well-Known Member

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    #13
    Tech4, look up dilution and likelihood of confusion. Those are two things trademarks aim
    to prevent other than so-called competition.

    In all, it boils down to what one intends to do with a domain whose word/s is also used
    as a trademark by someone else.
     
    Dave Zan, Dec 15, 2010 IP
  14. tech4

    tech4 Active Member

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    #14
    Dave Zen, look up "New York Taxi" and "New York Cab".
    Better yet, Google "Havana.com"

    So if you own NY Taxi therefore I can't use NY Cab? Because it dilutes and confuses your NY Taxi ?
    Now the question, why would you use something generic such as New York to begin with? If you can use NY Taxi, why can't I use NY cab?
    By the way, there is New York Taxi and New York Cab as 2 companies. Now the question is, which one should fork over? Because clearly they are confusing and do dilute each other.

    If you are referring to Microsoft and Mymicrosoft.com then there is clearly a winner. But with NYtaxi and NYcab your definition above does not apply, because by definition of generics, they stand for what they imply.

    The point being, what you are describing Dave Zen, only applies to specific proprietor name. ie. Google, Microsoft, not generic names. Generic names are confusing, and do dilute each other. ie. 1800-flowers.com and flowers.com . Does that mean flowers.com will now sue and win because 1800-flowers.com dilutes flowers.com ? Generic names do not belong to any specific enity, your dilution and likelihood of confusion does not apply when the terms are generic.

    What about 1800-mattress.com and mattress.com ? Which one should be the owner? who should fork over? Clearly you should study some more on generics vs. proprietor ownership. There are HUGE ASTRONOMICAL differences that do apply differently in court, that your definition of dilution and confusion does not apply.

    --------------------------------

    Mjewel: Look at Dave's reply, he said it depends on usage.

    Yes you can claim anything is infringement for as long as you want, or like, but you have to prove that in court. Read up on Havana.com, just google it. You will find that while the names are similar and it is trademark, it does not mean it belongs to the trademark holders.

    MJ you are just plain wrong, there are cases (I don't have to be in the court to read it). Try google "Havana.com".
     
    Last edited: Dec 15, 2010
    tech4, Dec 15, 2010 IP
  15. mjewel

    mjewel Prominent Member

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    #15
    You have no actual experience. You are attempting to simplify IP law by citing a couple of cases and then turning it into a blanket statement. LH.com was taken by Lufthansa even though it wasn't being used in a way that competed with it's business. PerfumeBay.com was found to be infringing upon the "ebay" trademark. Generic terms that merely describe a class of products cannot be registered (apple as a fruit vs apple as a music brand), but a generic descriptive or geographical terms can become a protected trademark if they can show it has acquired a secondary meaning. 1-800-petmeds was recently able to convince the USPTO that "PetMeds" has acquired a secondary meaning. Just because you can show an example of a mark that wasn't able to trademarked, you can't apply a single ruling to include every possible scenario. Every case is unique, and I can tell you from personal experience that you do not want to get into a trademark dispute, regardless of how strong a case you think you have, unless you have a vast sum of money to thrown away on principal. IP litigation is extremely expensive. Even when you win, you will likely have a financial loss. Google has spent $100 million in it's case with Viacom and that was just for round one. It has already been appealed.

    Anyone facing possible trademark infringement should seek the advice of an experienced IP attorney. There are so many variables that need to be looked at and all possible outcomes need to be fully explained. You go through a court trial in a trademark dispute, you are going to spend six figures in legal fees, and possibly more.
     
    Last edited: Dec 15, 2010
    mjewel, Dec 15, 2010 IP
  16. tech4

    tech4 Active Member

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    #16
    I did not say that you cannot sue anyone, nor that it is not expensive.

    I was merely replying to the post, showing that Generic names do have a purpose, and they do not belong to anyone single entity. That 1 case you mentioned wasn't just 1 case. There are countless others, in my example, like New York Taxi, New York Cab, 1800-flowers.com and flowers.com, are those just 1 case?

    Anyway. I did not just show an example.

    I did not say you can not trademark anything, I said you can. But that doesn't mean its exclusive to you.

    ---------------------------------------------

    About Perfumebay Vs. Ebay. Ebay eventually lost in 2008.

    Conclusion:

    "The final conclusion is that the district court did not err when finding that the conjoined terms would clearly create consumer confusion. The district court also did not err in finding that the non conjoined variants would not create likelihood of confusion. The district court did err in finding that Perfumebay's mark did not create dilution as the marks are similar. The court also erred in finding that eBay acted with unclean hands as there wasn't enough evident to prove the intent for deception. The court also did not abuse its powers by not allowing Perfumebay to claim attorney fees and was also correct in rejecting eBay's breach of contract claims."

    The above is the update of the ruling. Viewing the whois result comes up that Perfumebay did indeed retain its web.
    Ebay did indeed losses.

    Did you read the update MJ in 2008? Ebay did won in 2007 but again it was overturned according to the update. http://casesofinterest.com/tiki/Per...rfumebay.com+Inc.+v.+EBAY,+Inc.&highlight=usc

    Also you can see, Perfumebay, counter sues and won its " legal fee claims", they can go further and decimate ebay for fraudulent claim.
    Which I don't think they do, but ebay has a lot of money to lose afterward.

    Its a sword with 2 ends. In the later, Ebay had to pay attorney fees for perfumebay. Perfumebay could have asked for more, decimate ebay's reputation etc.,
     
    Last edited: Dec 15, 2010
    tech4, Dec 15, 2010 IP
  17. mjewel

    mjewel Prominent Member

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    #17
    You need to re-read the finding before you start posting false statements. lol.


    "The final conclusion is that the district court did not err when finding that the conjoined terms would clearly create consumer confusion. The district court also did not err in finding that the non conjoined variants would not create likelihood of confusion. The district court did err in finding that Perfumebay's mark did not create dilution as the marks are similar. The court also erred in finding that eBay acted with unclean hands as there wasn't enough evident to prove the intent for deception. The court also did not abuse its powers by not allowing Perfumebay to claim attorney fees and was also correct in rejecting eBay's breach of contract claims."


    http://caselaw.findlaw.com/us-9th-circuit/1050747.html
     
    mjewel, Dec 15, 2010 IP
  18. tech4

    tech4 Active Member

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    #18
    It is funny, too fast...anyway.

    I'll refrain from replying for now.

    But for some reason, perfumebay owner is not ebay. Why is that?
     
    tech4, Dec 15, 2010 IP
  19. tech4

    tech4 Active Member

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    #19
    According to the cases Perfumebay Vs. Ebay. Ebay claimed that "some" customers are confused. Therefore the court ruled because some customers claim it was confusing, it ruled in favor of Ebay.

    Which is clearly a no brainer. A case that has been misjudged. There are always some people confused of about anything. Does that mean it represent the business entity's purpose is to cash on those some people? Or is the business entity and model totally different and operates on its own. It must have been that the Perfumebay did not fight back with good lawyers.

    It was the judges that should be removed not the perfumebay.com. If I was personally connected to the owner of perfumebay.com I would go back and counter sue now.
    Just for the heck of it.
     
    tech4, Dec 15, 2010 IP
  20. mjewel

    mjewel Prominent Member

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    #20
    All they have to show is that a "likelihood of confusion" could exist. It doesn't matter if you or I think it was a bad decision, it just goes to show that no matter how good your case is, you are risking vasts sums of money and can never be sure of the outcome. Perfumebay.com spent something like $750,000 in legal fees and were represented by an experienced IP law firm that has won numerous IP cases, including one against Microsoft. You might think $750K is a lot of money - it's nothing to eBay.

    Sue for what? What don't you understand about losing in the 9th circuit after they already lost in the lower courts? IMO, the 9th Circuit makes bad rulings all the time - So what? Perfume Bay already went through an appeal and lost (and it was a 3 judge unanimous decision). They could of appealed to the Supreme Court, but decided against it.

    It's always easy to tell other people how to spend their money - especially when you don't have the $500,000 or so needed to do it.
     
    Last edited: Dec 15, 2010
    mjewel, Dec 15, 2010 IP