Now I see that a very similar domain name has appeared (one letter different) with quite a similar idea for the site.
I have spent quite a bit of money on my domains and it's a great name so I don't want to ditch it.
Could I be accused of trying to pass myself off as them if they get their site up first, even though I have had my domains for several years?
What's the best way to protect my domain name?
What also matters is your business name (or theirs), and any registered trade marks or service marks. Using the name without registration off-line could also figure, and there are other aspects too.
Genrally, owning a domain name alone carries little weight, while registered trademarks trump all. In between, it would depend much more on the detail.
But, a domain name that has never been used, and is not a registered mark, may be hard to defend.
On the bright side, the name is not *exactly* the smae; not like you had dotcom, and he got dot.net. Passing off is much more difficult to prove especially as your names are unused. But his move may have devalued them, expcept to someone who wants to pass off and is willing to take the risk.
Much of the above is conjecture - without knowing the name - and I'm no lawyer. But the bits about registered marks are correct.
Consider the analogy of being the one and only rightful Mr. James Smith.
What would it take for "me" - , the hypothetical “James Smith” - to attempt to pass myself off as "you" – the other James Smith of exactly the same name? (Putting aside, for the moment that I “took” cough . . cough . . your name.)
To pass myself – James Smith - off as you – James Smith - I would likely:
Hopefully, by considering the analogy of encountering people with the same name, you can see that there's more to passing one's self off than simply sharing a common name.
What about a website named Widget vs. BlueWidget vs. MyWidgets vs. WidgetsOnline.tld? Does the analysis of "passing off" end with "the name"? I don't think so.
Generic, descriptive website domain names - like popular surnames - present the possibility of momentary uncertaintly. However, with generic or commonn phrase website names, just like with common human names, a person of any intelligence quickly realizes they're not interacting with their old schoolmate . . or the website they're really after. "Oh, you're not JamesSmith.co.uk! You're JamesSmith.com or JamesSmith.it. Now that I pause for a moment to look at your face (website) I realize you don't look anything like JamesSmith.co.uk. You're not quite as handsome, nor nearly as charming."
When it comes to generic website names the cornering of the egg market is not quite as simple as whose egg hatched first. I do not recall reading any WIPO or National Arb decision that said, when it comes to generic names, that "first to launch" is determinative of rights to exclude others from employing the same generic descriptive name. Imagine what such "rational thinking" would do to the entire gTLD or ccTLD system? Why bother launching a new gTLD IF all dictionary word domains and common phrase domains were already owned by existing websites, merely by virtue of having hatched first? "Hey! Don't even bother registering Widget.info! We own it! Along with every other word and common phrase in the boo!"
Maybe. If you are Microsoft.
If the domain that you are referring to is a unique word, not a more generalized word, even that won't win the day if company A uses Glackomizzenburfink.tld to sell roses and Company B uses the same word/name as the name of an accountancy.
I see Q's comments above as a bit of apples vs. oranges talk. If you are really interested in starting to explore the legal and factual analysis that applies to trademark law I suggest you spend a few hours reading WIPO domain name dispute decisions. There's also the National Arbitration Forum section dealing with domain name disputes.
[edited by: Webwork at 5:40 pm (utc) on July 7, 2007]
It's been my observation and experience that every legal/civil case tends to be - and needs to be - very fact sensitive, for good cause. Judical rulings establish precedent and make law. Rulings that make sweeping statements or that reach sweeping conclusions tend to create unintended problems for innocent bystanders - folks or companies that suddenly find themselves thrust into turmoil by injudicious exercise of judical power. Better to make law with tweezers and microscopes than with 1,000 pound bombs dropped from 30,000 feet.
In consequence of what is actually a sound policy making process folks view lawyers as driven by greed, needlessly padding their bills by arguing about small, inconsequential details.
I'm not saying that that doesn't happen. However, the so-called "haggling of small details" is often a necessity. For example, intent or design to act is often an issue in litigation. An intention to act in a bad way is seldom admitted by a party to a lawsuit. Since actions that may reveal a person's true intent or true design are often ambiguous this makes the task of divining intent an arduous - haggling of the small details - process.
In the context of this thread a single issue - passing off - would likely require a detailed critical analysis of both the actions of the alleged offender and the supposed confusion of the "victim".
Since we can neither reach a conclusion nor offer meaningful value to readers/members without getting into messy factual details we rarely play host to trademark infringement/violation threads.
[edited by: Webwork at 6:03 pm (utc) on July 7, 2007]
as long as what you say is useful
". . as long as . .?"
I will draw no negative inference from that statement - or what is omitted therefrom - as said statement may relate to my latest bout of voluminousness. :-P
