Basically what you are saying is the do have a TM. Where you are confused is that they did not register their mark. You do not have to register your TM for you to have protection. Now, what you are saying is you want to use it in a different catagory than the established business. That is acceptable as long as you follow your outline. The sooner you can get something up, the better.
Now the bad news, UDRPs are not under TM law. The criteria for establishing rights are more broad than if there was a TM challenge in court. Can they prove they ahve rights to the domain? You even said they do. Now comes the "was the domain reigstered or being used in bad fath?", it is up to the TM holder to prove it, but it is also up to the domain owner to protect themself...
Thats exactly what I meant!.
Thanks for your advice DNQuest,.
So overall, it's a 50/50 situation meaning that if I get development sorted then I have got a better advantage ...
Correct me if I'm wrong as this is my interpretation of what you said.
For the most part yes, as long as the domain isn't distinctive (Like Google. Yahoo, Microsoft). If the domain is generic and is in a different catagory, it does help you. But it seems they may have TM protection, and that is in thier favor. Just make sure they cannot prove bad faith (though that is not a 100% gaurentee)...
DNQuest - are you saying that if you have a parked domain name, and a company comes along and chooses that name for themselves and starts trading using that name, they can then claim the trademark even if you registered the domain name before they existed?..
Even though I do not see how this relates to this thread... No, someone cannot do that as long as you are not breaking any laws. But as soon as you start using the domain in bad faith, then you could be hel liable for the bad faith usage and could lose the domain. But the burden would be on the plaintiff proving all the elements of the case and it would be tough to win for the plaintiff, but in courts, anything is possible...
That answered my question!.