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Hello all,.

My ques.

If I register a domain before it's TM registration, then in this case, who will get the name- the TM /img/avatar2.jpg or the domain /img/avatar2.jpg?.

Thnx..

Comments (9)

There are too many factors to answer such a general question like that.

Brad..

Comment #1

Good question ,i can say I am also new in this field so I also like to know the answer, for example I registered loveabc.com then after few months or year or two a new company is started or a tv show , who would get the domain, lets says someone started a local dating club called loveabc in Nyc , and if they filed a case againt me for the domain , what would be the resolution in this case , Brad said it's too general...

Comment #2

Trademark = Trade + Mark. Many companies can use the same mark in different fields.

Let's take COKE for example. Most people associate the term with the soft drink maker, that is their trade and COKE is their mark. However, there are also many other companies named Coke just in other fields.

However, if you tried to use the term COKE and also deal in beverages, then you are in clear violation of their famous TM.

The more famous, and unique the TM the more protection it has. You can't TM "Candy" to sell Candy. But, you could TM "Candy" for a totally different use.

The example you give sounds like RDNH (Reverse Domain Name Hijacking). It is when a company tries to go after a domain name, even though it predates any TM rights they can claim.

There are also common law trademarks which are even more confusing. It is really a case by case basis.

Brad..

Comment #3

Let's keep the discussion on track... threads construed as "thread hijacking" have been removed. Please start a new thread for your individual issues. Thank you kindly..

Comment #4

There are lots of factors that would be taken into consideration..

Comment #5

Yes, Look around at the nissan decision. Then look at the PETA decision here you will see two cases where the less well known party has done well thus far.

Examine Cargills decision and you will see a case where a HUGE domain name company lost a domain decision against an even LARGER TM owner recently{June 12, 2009}. The HUGE domain name company has failed to follow the ruling of the arbitrator and it is still parking at the site and listing it for sale. The HUGE domain name company is still the "little guy" although they are one of the biggest involved in Domain Name Media. The Supreme Court will soon be in the loop. They have stayed out of the issue or left District Court decisions alone. There we see politics ruling the day.

15:1125 (d) Trademark Infringement (Lanham Act).

The current "powers" are focusing on the supposedintention of the preceding law. That intention they are now saying is to protect consumers from being confused or misled instead of being treated as protecting the intellectual property of the TM owner except by protecting them from losing confused consumers. Law is a very fluid and dynamic environment. It is rarely logical. One plus one is rarely two.

1x+1y= 2z Is only true where (z) is a complex equation that depends on what (x) and (y) are.

This all might depend on how much menopause or Alzheimer's are affecting the individuals on the court that day and whether or not it is raining. The political climate might have more to do with it than the weather. It might not.

Are you the"little guy"? That is currently the probable winner. This issue exactly is morphing as you read this. This is only my opinion. Isn't it interesting? You asked "Who will win".I gave you three links to relevant decisions and one link to the law that will determine the answer if it ends up in court. Basically I think it depends on politics...

Comment #6

Cargills can be interpreted as Car Gills, which is a car part. A lot of people (with bad taste) modify their cars with ugly aftermarket Car Gills if you didn't know already...

Comment #7

Usually the domain owner would get to keep the domain. But there's no law / policy that guarantees that, though the reality is that very often first come, first serve wins out.

The USPTO TM database is a list of registered TMs, not all TMs. Statuses, such as "active", "expired", "canceled", etc refer to the registration NOT the actual TM; common law TMs won't be listed in there at all, and most foreign TMs won't be either.

Thus often it comes down to intent and usage of the domain - if it's being used in a manner that makes it appear as being that of a TM holder, even if their TM came later, the registrant could potentially still lose the domain.

Finally, having a TM does not automaticaally entitle one to the similar looking domain name and, conversely, owning a domain name does not automatically entitle one to the similar looking TM. I mention this since there are numerous TMs that are similar to that of many generic like domains; that alone doesn't entitle one to the domain nor vice-versa; intent and usage also matter.

Ron..

Comment #8

Unfortunately there are few exceptional cases where domain names were transferred even after its.

Trademark name-sake had been established. They seem to involve the domain name's content or so.

Reflecting that trademark "after the fact", or when the trademark started being used...

Comment #9


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

 

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