I've stumbled upon a commercially-significant term that is not trademarked in the United States. No common variant of it is trademarked, either. Yet, there is a website using it for their domain name and selling those items to the public. For example, if the term were widget, then the word widget is not trademarked but there is a widget.com and that site sells widgets. I would like to sell widgets online, and I would love to have the domain widget.com. If I pay the $375 to trademark "widget," can I then force the competing site to give up their domain?
The short answer is no, you can't. If they were using the name first in sale, or had announced publicly its intended use for sale, then they would have rights before you do, even if they don't officially trademark the term. All that matters with trademark really is first use in business. You can both use the name if you're in completely different areas and selling locally. Selling online is a little trickier because of it being global. So it depends on where that person / company is located, and if anything, they'd be more likely to have grounds to stop you if you were trying to use it to compete with them. And if they're non-competing products or services using the same name, there would be no trademark violation anyway, so still no... you're not going to be able to force someone out of their domain name. Keep in mind... the trademark office doesn't do a big trademark search for you. It's your own responsibility to have it checked out, not only in a free online search, but to have a lawyer look into commonlaw issues and state registrations. Lots of people pay for trademark registration when they don't have the right to the trademark, because they didn't fully research it. And guess what... the government isn't going to give your money back. If someone's using a name for something you want to compete with, try coming up with your own name instead of trying to steal theirs. Jenn
where did you search that term? Did you do a search at the USPTO only? If a term may have a word wide protection and you would a search at the USPTO only then you would get problems ... Timo
I searched only at USPTO, so it is possible that the word has worldwide protection. It is a commonly-understood term, and the domain owner is US-based.
Names can also be protected in state and local levels in the US through registrations in those areas. That's why I said earlier you need to have a lawyer do a thorough search first. If someone has rights to the trademark, officially registered or not, in a certain area, and you then come in with a broader area to compete with the same products/services/etc. but overlap the area where they have protection, then they're the ones who are going to win a dispute. Like I said before, trademark is a "first use" issue. And if it's such a commonly-understood term (I'm assuming you're talking about a pretty general word or something), then it's probably not a registered trademark because it can't be. You can't just go around trademarking general words. It's a matter of the area you're conducting business in, and the scope of the work that decides if something can be trademarked or if you're violating someone else's right. If it's already being used for something competing, you really should be changing your name instead of risking a dispute (which obviously has potential, since you yourself were planning to start one). Jenn