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Last night we took some friends out to dinner and as the conversations turned from idle dinner chat to business this topic was introduced by one of the people at the table and everyone had an opinion and I am left to ponder.

I have read many threads similar to this topic and I of course had my opinion and now that the night is over I would like to see read your opinions.

The hypothetical case does NOT involve reverse domain hijacking, however it does involve domains and trademarks.

The hypothetical that was brought up is as follows.

Business A purchased and operates a website under the name widget.com they have owned the domain and site since the internets inception.

Along comes Business B and this business successfully trademarks widget for both wares and services which includes internet website. Business B is not interested in obtaining Business A's domain however Business B would like Business A to cease and desist using Business B's trademark.

To make things even more interesting there is several other businesses online that also had domains previous to the trademark and since the trademark was granted that use domains such as specialwidget.com uglywidget.com ect.

Now Business B is not interested in obtaining these domain addresses however they are all selling widget or attracting consumers to find out more information about widget. and Business B is only interested in protecting it's trademark so as not to dilute it's mark.

Business B also owns widget.(country code) and many other variations of the domain in .com such as prettywidget.com ect.

The main arguements that were brought up last night during dinner were that since Business B has successfully been granted trademark they have sent copies to google and other PPC advertisers claiming right of use of it's mark are considering sending cease and desist letter to all companies involved in using it's mark regarding keyword and advertising for and within their websites. This is where everyones opinions varied with regards to legalities and what could and could not be done.

What are your thought's?..

Comments (5)

There are 2 different perspectives on this, TMs and UDRPs. A UDRP can be fought because the TM holder cannot prove bad faith registration. The only way they could lose it if it was proven they used the domain in bad faith (IE- changed their site to sell widgets which was TMed). Now from the TM side, I am less familiar with it, but I believe the TM holder can challenge on the grounds of the TM through the court of law.

It is tricky, but just hope Business B goes the UDRP route because it is easier to defend with teh given senario...

Comment #1

I do not believe a trademark has any power over a business that was using the mark the same way before the TM was granted. The older business is grandfathered.

Where it gets interesting is when the old business moves into new areas. If you were good at predicting, lets see...Say you thought the future of computing was via ESP. You trademark ibm as a company researching ESP oh, inter-brain mental or something. Then in a few years when IBM (big) wants to start marketing their new brain to computer system there you are in the way.

They would just run over you, but you get the idea...

Comment #2

A very interesting precedent has just been set with the 'cheaptickets' domains.

As I understand it, the owner of the .com (who had TM'd 'cheaptickets') was going after the owner of the .ca version, in a WIPO challenge.

The .ca owner, deciding to fight fire with fire, countered by applying to have the TM taken away from the .com owner, on grounds of it being a generic term.

The .ca owner won, and the TM has been revoked...

Comment #3

I guess what youre really asking is what B can and cant do? They can pretty.

Much do what they want, but how to enforce their claims is their problem.

Trademark infringement is an inherent risk when registering a domain name. If.

Someone claims your domain name is infringing their trademark, its up to you.

To decide whether to fight it or not.

There's no simple answer without having all available facts. One outcome does.

Not necessarily say how another will turn out.

If you're after some sort of specifics, specific conditions and/or questions are.

In order...

Comment #4

In that scenario Business A wins period. TM works from date of first use...

You are generally asking the same type of question answered here daily except in an odd way.

Business B has no right to Business A. Business A as a matter of fact could go after Business A.

Apple Computer and Apple Records are a good realworld example. And when Apple Computer delved into the online music world it treaded onto the Apple Records territory. Lawsuits were the result and I am not even sure if they were settled or are just awaiting trial. There is a thread around here somewhere about it...

Comment #5


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

 

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