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Issue with domain and trademark infringement

Discussion in 'Legal Issues' started by jonoweb, Jan 3, 2012.

  1. #1
    I have a domain and a registered company and trademark all of one name say pink-pots.com for example

    am i able to send a trademark infringment notice to the owner of pinkpots.com? as this would confuse consumers thinking their site is affiliated with mine.
    SEMrush
     
    jonoweb, Jan 3, 2012 IP
    SEMrush
  2. oulee

    oulee Peon

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    #2
    I dont think so as a domain is registered in its own right. So unless you have lots of cash and good legal support Im sure there is little you can do.
     
    oulee, Jan 3, 2012 IP
  3. Bofu2U

    Bofu2U Peon

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    #3
    The real question is was the trademark in place before they registered the domain? I believe you have 1 year from the date of trademark to issue a notice to them, outside of that you can't do much. Although I'm not a lawyer, so I'm going off of what I "think" is correct. :)
     
    Bofu2U, Jan 3, 2012 IP
  4. jonoweb

    jonoweb Active Member

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    #4
    I haven't actually registered the trademark or company yet, but i don't want to change the name, they have the domain without the dash, straight .com and its just a redirect to their main site (which sells the same product).

    Surely if I am genuinely building a business a legitimate business I should have the right to this domain name?
     
    jonoweb, Jan 3, 2012 IP
  5. druidelder

    druidelder Peon

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    #5
    First off, if they are selling the same product as you and the name is in reference to that product, then you likely have no claim for a trademark in the first place. From the limited info you provide, I would have to guess that you are both reselling a product. You infer that the domain name references the product, which means ultimately the group that really has a claim is the company that makes the product. I could be reading it wrong, but from how you wrote it, that seems most likely.

    Furthermore, trademark preference is given to first commercial use. If we assume your "product" is actually a service (so that there is no company above the two of you that actually owns the trademark) the question then is who used it first. If they used the term first, then the fact that they use it to redirect to their main site is irrelavent if they are calling the service/product by that name. If you had been using it first and then they pcked up on it, then you would have preference. Since you only have the - version, I would guess they were up and running before you.

    Of course, all this assumes that you can actually trademark the term in the first place for what you are doing. If the name is essentially a description of the product then you most likely would be unsuccessful in registering the trademark regardless of the other issues. (For example, if you are actually selling pink pots, then the term "pink pots" cannot be your trademark.)

    If I read that wrong and their site does not sell the same product (or type of product) as yours, then the fact they had the domain registered before you even submitted an application for the trademark likely means you would have no recourse to obtain the domain other than to buy it from them.
     
    druidelder, Jan 3, 2012 IP
  6. browntwn

    browntwn Illustrious Member

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    #6
    Surely you don't have the right to a domain name that you are not even yet using in business and that some other company is already using.
     
    browntwn, Jan 3, 2012 IP
  7. Dave Zan

    Dave Zan Well-Known Member

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    #7
    Trademarks aim to prevent confusion as you inferred, not necessarily grant some magical claim towards any and all variations of its namesake. This is especially if
    that domain name was acquired before its trademark namesake existed, registered or not.

    To add what has been said, one exception to the domain-registered-before-trademark-exists scenario is if the domain name's content was changed to essentially
    "acknowledge" the trademark's existence. For example, you might have a claim if the domain's registrant changed its ads to show those of competing products or
    services after your trademark started.

    Besides, would you appreciate someone doing to you if roles were switched? Some food for thought, perhaps.
     
    Dave Zan, Jan 3, 2012 IP
  8. dudewebmaster

    dudewebmaster Peon

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    #8
    anyone can register any domain so don't worry, its not trademark infringement, its the domain name use for rankings
     
    dudewebmaster, Jan 4, 2012 IP
  9. mjewel

    mjewel Prominent Member

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    #9
    Three consecutive good posts.... and then an idiot comes along to break the streak.
     
    mjewel, Jan 4, 2012 IP
  10. billwright

    billwright Greenhorn

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    #10
    Weather they infringe or not, if you feel they are hurting your business/trademark send them a cease and desist order and state your claim. There is a good chance they will fix the issue or simply ignore you. But for a few hours of generating this, you'll do something that an attorney will charge you $1,000's for.
     
    billwright, Jan 23, 2012 IP
  11. snakeman

    snakeman Peon

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    #11
    Words of wisdom billwright.We deal with this stuff all the time and nine out of 10 times a "cease and desist" letter will work.My guess also is that in the wake of the megaupload case this week, people will be more wary than ever in terms of infringing IP, trademarks, copyright and the like, so it may be to your advantage here.All the bestSnakeman
     
    snakeman, Jan 23, 2012 IP
  12. IG2010

    IG2010 Well-Known Member

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    #12
    IG2010, Jan 24, 2012 IP
  13. snakeman

    snakeman Peon

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    #13
    Well IG2010 on a read of the summary it seems the higher court judge or judges (in Latvia) didn't have a clue what was going on.The decision was totally inconsistent with itself, let alone anything else!This is not rare at all. Judges are human like the rest of us and often get it wrong.In some jurisdictions like Australia and the US the corruption in the legal system is endemic, making things even worse, but that's another story.While talking case law and judgements, it would be better to look at major jurisdictions in the Anglo world (US, Australia, UK) and concentrate on trademark cases and the internet. There are plenty of them.Look for example at "Kennards Hire V Caruso".It relates directly to SEO.All the bestSnakemanAll the best
     
    snakeman, Jan 24, 2012 IP