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Say you owned wigwang.com b4 it was tademarked, and then Sony came with a game of the same name and trademarked it, AFTER the fact of the .com reg, can they demand their name, or are they stuck to negotiate.......

On the other side of the coin, if you reg'd a name with the intentions of using this name for your own product and someone ELSE trademarked the same name AFTER the reg of the .com name, with either a differrent product in mind, or to try to steal the product/idea, would the person who aquired the .com b4 trademark have a stronger case, and retain rights to the use of the .com name problem free? Just a question , Sony is just an example and wigwang is made up..

Comments (10)

If you registered the name before it got trademarked by someone else, you own it. This doesn't mean you won't be challenged for it, but as long as you can provide evidence that you owned it before it got trademarked, you're safe. I'm not a lawyer so this is not legal advice. It's just my understanding of the law. Hopefully a lawyer will step in and clarify...

Comment #1

Funny, I was just coming to post the same questions posed by tvman.

I hope someone with REAL professional legal experience (no offense Gene, ) would be kind enough to weigh in on this...

Comment #2

In that case, go through this member's posts one at a time.

There's no single surefire answer except "it depends". Even if you gave a set.

Of facts, toss in an additional one and it can change everything...

Comment #3

I'm not a lawyer also, but here's where I think where the situation stands.

If you register a domain BEFORE a company applies for a TM, I see two issues arising.

1) Even if you had the domain before SONY registered it as a trademark, did it happen tha the SONY at that time maybe was careless enough to have had a press release regarding the game or wtv before applying for a TM. Highly doubt this case should occur. Then if so, maybe they could say the info was out there and you registered in bad faith, who knows.

2) Was there a clear connection that you might have had inside information. Perhaps a family member or someone linked to you who worked at Sony.

3) Even if you are cleared of 1) and 2), they might decide to take you to court, but don't think they would have the right to just take it away from you. You can do a bit of research on the case of the Iphone I think. This person had an operating site selling phones, Apple TM'ed Iphone, but they couldn't just take the domain away from the guy. (Someone can bring more clarification perhaps).

NOW for the issue of you owning the domain and wanted to use it for your own purposes and someone registered the name as a TM. Now this can get complicated..

I think you should have no problem retaining the domain. BUT, developing it, you have to be very careful not to be similar to what the TM entitles the company who applied for the TM..

If they "stole" your idea, then that's life. Unless you can prove that they did so, you pretty much can't do anything about it. That's why it's always better to keep ideas secret, at least until it's trademarked or patented.

Hope this helps, I've taken some law classes in University so I guess I would have a general sense of it, but I do not practice Law..

Comment #4

Thanks pokainc, great helping me understand, the reason I really asked is I have some pretty good .com names that have great keyword meanings, and I'm sure it's only a matter of time before some of the big companies try to trademark them...

Comment #5

I think that essentially if you get them before the TM exists, you are safe. This however won't stop you from getting a UDRP or being sued. Product development costs a company tons of money and if they just spent millions developing a product, no amount of paperwork or legal fees may necessarily stop them from picking on a not-so-well financed owner. Also, if they do receive a TM, then you stand the risk of losing the domains providing you infringe on that mark in any way through the usage of your domain. This could include parking it with similar or competing ads, or developing it in relation to the service or product that they own the TM for.

So as an example.. If you owned GreenTree.com... and someone comes along and obtains a TM for financial services... you should be safe providing you don't use the domain for anything remotely related to financial services. Just an example...

Comment #6

I see this question in a variety of formulations about ten times a week.

This particular statement of the question is the one that I've pretty much taken to simply shaking my head and walking away from.

Here's the problem - I have no idea what you mean by the use of "trademark" as a verb in your question.

It's not because I'm dense, though. It's primarily because I have come to understand that forum folk may mean any of several different things by using "trademark" as a verb, and while the person asking the question may have something definite in mind, it is usually because that person has an implicit belief that a "trademark" is some sort of official act generally performed by a government office.

I have a dog. She is a stray dog that was taken in by my wife prior to our marriage, and when she lived in another state. She didn't get a license for the dog.

I'm something of a lazy person, and after the dog (and my wife) came to live with me, I didn't get around to obtaining a license for the dog. Eventually, I had to find some place to board the dog for a trip, and so I had to get a license for the dog. The dog was about four years old by that time.

Now, here's the point. My dog has been registered with my state as my dog for a little over a year. That's how long I've officially had my dog registered.

I've had the actual dog for three years, and the dog is five years old.

My dog was every bit as capable of biting your ass before I registered it, and my dog will remain every bit as capable of biting your ass if I don't happen to pay the registration fee for it next year.

The existence of my dog is a fact that is entirely independent of whether or not my dog is registered with the state. My registration of my dog has nothing to do with when it became "a dog", when it may or may not have been capable of biting you, or how long she has been my dog. Ah... you see the difference? Mr. Regging is careful to say "before the TM exists" instead of something vague like "before they trademarked it" or "got a trademark".

This is because Mr. Regging understands quite well that the key thing is that the existence of the TM determines priority. Mr. Regging further understands that there are more things in life than the UDRP. You would do well to grasp the things that Mr. Regging is saying here.

The problem with Mr. Regging's answer is not a fault of his understanding, or my understanding of his carefully chosen words, but of the reader's ability to understand that those words were carefully chosen.

I am willing to bet that the vast majority of folks who use trademark as a verb will understand Mr. Regging to have said "before the TM is registered" instead of "before the TM exists", again because of the fixation that the verbists have upon the act of registration.

In any event... she's quite a friendly and gentle dog who loves small children and puppies, and she would not actually bite your ass under any circumstance I could imagine...

...very much unlike her owner...

Comment #7

Classic, John. Next time people ask a question like the one here, I'm pointing.

'em straight to your comment here...

Comment #8

John your posts are not only informative but very entertaining too.

I almost fell off my chair laughing.

Cheers!..

Comment #9

Thanks for the replies, especially to Dave Zan and Ronald Regging. Will have to contact the esteemed Mr Berryhill directly to see what the answer(s) might be for my particular situation...

Comment #10


This question was taken from a support group/message board and re-posted here so others can learn from it.

 

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