Legal Question. Infringement?

48 replies
Lets say that I own a domain like appleipadreviews.com.
Is that domain an infringement? This is just an example.
Thanks, I do own a similar domain name in which I have
received "CEASE and DESIST any and all use of the Domain Name." Email.
kind of fishy though because there is no contact name.
#infringement #legal #question
  • Profile picture of the author arttse
    Its a major infringement.
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  • Profile picture of the author SpaceAge
    I won't be so sure about jumping to a conclusion. But if you have received such a notice, its best for you to employ caution. If you don't want the hassle, then a simple solution can be to just comply. If you want to take this matter further, then discuss this with a lawyer specialising in IP.
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    • Profile picture of the author Kay King
      Companies register their names as "trademarks" and that means they have a right to protect that name from use by others under certain conditions.

      You think it's "fishy" only because they are telling you to "stop using our name". Do a google search on "trademark infringement" and learn what you can and cannot do.

      If you think honestly about it - companies do not spend years building and promoting their brand so someone can jump and trade on that company name to make a few bucks. There are exceptions but unless you have the money for a court battle....

      kay
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  • Profile picture of the author scortillion
    sorry it's an infringement
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  • Profile picture of the author Bill_Lawrence
    I believe it's infringement because you're using the brand name "Apple" and their product "Ipads" to generate income without their consent. You're capitalizing on their brand.
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    • Profile picture of the author Bill Farnham
      There was a post here last year where a guy was complaining that Apple took 16 domains away from him when they finally caught up with him.

      You mess with Apple...they mess back.

      ~Bill
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      • Profile picture of the author maiko2299
        Originally Posted by Bill Farnham View Post

        There was a post here last year where a guy was complaining that Apple took 16 domains away from him when they finally caught up with him.

        You mess with Apple...they mess back.

        ~Bill
        Again that is just an example!
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        • Profile picture of the author TeamGlobal
          Kay summarized things nicely.

          Companies don't want the strength of their brands diluted and they pay a lot of money to make sure they keep brand dilution to an absolute minimum.
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    • Profile picture of the author maiko2299
      It's an infringement because the trade mark is in the domain. What is the difference between writing a squidoo lens about, Apple Ipad Reviews? Couldn't that content be an infringement too? Perhaps a discloser on the top of the website, or lens, should be adequate. "Not Affiliated to Apple inc." FYI Yes I did kill the domain.

      thanks for your responses.
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  • Profile picture of the author jake411
    Originally Posted by maiko2299 View Post

    Lets say that I own a domain like appleipadreviews.com.
    Is that domain an infringement? This is just an example.
    Thanks, I do own a similar domain name in which I have
    received "CEASE and DESIST any and all use of the Domain Name." Email.
    kind of fishy though because there is no contact name.
    It might do you well to read the
    LAW on patents
    trademarks
    copyrights

    before you spend time, money,
    and effort on any plan or site.

    Don't forget to check spelling
    variations of names and brands
    also before you proceed.
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  • Profile picture of the author maiko2299
    that's great advice Read the law on patents trademarks, copyrights before you spend a dime.
    I seen it many times people promoting clickbank products by using similar and even confusing domain names. There are a lot of people out there who have made this kind of mistake.

    I make no excuses I made a mistake. In which case I am willing to own up to it. Sharing mistakes are good ways to help other people learn. It's a failure, on my part, but it's okay because I know what not to do.

    Again thanks
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    • Profile picture of the author jake411
      Originally Posted by maiko2299 View Post

      that's great advice Read the law on patents trademarks, copyrights before you spend a dime.
      I seen it many times people promoting clickbank products by using similar and even confusing domain names. There are a lot of people out there who have made this kind of mistake.

      I make no excuses I made a mistake. In which case I am willing to own up to it. Sharing mistakes are good ways to help other people learn. It's a failure, on my part, but it's okay because I know what not to do.

      Again thanks
      Also...
      the patent office and copyright office
      have online search facilities.

      Just google patents, and copyrights,
      and trademarks. You'll find the U.S.
      Government websites where you
      can search.
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  • Profile picture of the author Jpaige
    dont ever battle w/ apple, just not worth it. In your case, your domain name does use something apple owns.
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  • Profile picture of the author ankitnagpal
    Originally Posted by maiko2299 View Post

    Lets say that I own a domain like appleipadreviews.com.
    Is that domain an infringement? This is just an example.
    Thanks, I do own a similar domain name in which I have
    received "CEASE and DESIST any and all use of the Domain Name." Email.
    kind of fishy though because there is no contact name.
    don't worry. you can write GOOD reviews about my site and software. I don't mind.
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  • Profile picture of the author sbucciarel
    Banned
    Yes ... that would be an infringement of a trademark and if it is Apple, it's a very big infringement.

    It's a good idea to look at least at TESS before registering a domain name
    http://tess2.uspto.gov/

    But with Apple and iPad, you don't need to look it up. It's an obvious trademark.
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  • Profile picture of the author Dan C. Rinnert
    Originally Posted by maiko2299 View Post

    Lets say that I own a domain like appleipadreviews.com.
    Is that domain an infringement? This is just an example.
    Thanks, I do own a similar domain name in which I have
    received "CEASE and DESIST any and all use of the Domain Name." Email.
    kind of fishy though because there is no contact name.
    Contact an attorney. If you cannot afford an attorney, cease and desist.

    If you are using it to promote the Apple iPad or a competing product, then you are profiting by use of the name and could be infringing.

    If you are using it to express your opinion about Apple iPads and are not monetizing the site, you might not be infringing. But that would be something to discuss with an attorney to determine.
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  • Profile picture of the author gottahave
    Years ago we had a site teaching people how best to use ebay with "ebay" in the domain name. We received a very threatening letter from Ebay's legal department listing all the consequences if we did not remove the site.
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  • Profile picture of the author bengirwb
    I just Googled "ipad"
    At the top of the first page is
    ipadreview.com

    This isn't an Apple site.

    Infringement is when you try to COMPETE using someone's brand name.

    A review site is not COMPETING with the product ipad.
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    • Profile picture of the author sbucciarel
      Banned
      Originally Posted by bengirwb View Post

      I just Googled "ipad"
      At the top of the first page is
      ipadreview.com

      This isn't an Apple site.

      Infringement is when you try to COMPETE using someone's brand name.

      A review site is not COMPETING with the product ipad.
      You are incorrect. Just because you found another infringing site, does not mean that it is ok. There are very limited uses of a trademark that are allowed under Fair Use. Google trademark infringement and read up on it before giving out legal advice that could cost someone an arm and a leg.
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    • Profile picture of the author bengirwb
      Just did another Google search.
      Came up with
      applesucks.org
      applesucks.wordpress.com
      why-apple-sucks.com
      mac-sucks.com
      applesucks.nl
      applesucks.us

      I quit reading on page 3 of the search results.

      The trademark word apple is used, but they do not infringe because they are not COMPETING with apple.
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      • Profile picture of the author bengirwb
        So if Facebook trademarks "face" you'll stop using the term.
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        • Profile picture of the author bengirwb
          Trademark is a term that means a "mark" used in "trade"
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          • Profile picture of the author bengirwb
            There are cases where the same name is trademarked by more than one company.

            The one that comes quickly comes to mind is Yahoo.

            Yahoo is the trademark of a chocolate drink.

            Yahoo is the trademark of a web site.

            No body is infringing on any body because they are not COMPETING for the same business.

            Don't think anyone would have a problem creating a site
            an-apple-a-day-keeps-the doctor-away.com

            There would be NO COMPETION in the marketplace
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            • Profile picture of the author paulie888
              Originally Posted by bengirwb View Post

              The one that comes quickly comes to mind is Yahoo.

              Yahoo is the trademark of a chocolate drink.

              Yahoo is the trademark of a web site.

              No body is infringing on any body because they are not COMPETING for the same business.

              Don't think anyone would have a problem creating a site
              an-apple-a-day-keeps-the doctor-away.com

              There would be NO COMPETION in the marketplace
              Ok, this is where you're completely wrong and off-base, because the name of the chocolate drink is Yoohoo and not Yahoo!
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            • Profile picture of the author bengirwb
              Do you really think someone would go to
              applesucks.us
              with the expectation that he was ordering an apple product?

              No COMPETION or CONFUSION

              Good night, and good luck
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            • Profile picture of the author halmo
              Originally Posted by bengirwb View Post

              There are cases where the same name is trademarked by more than one company.

              The one that comes quickly comes to mind is Yahoo.

              Yahoo is the trademark of a chocolate drink.

              Yahoo is the trademark of a web site.

              No body is infringing on any body because they are not COMPETING for the same business.

              Don't think anyone would have a problem creating a site
              an-apple-a-day-keeps-the doctor-away.com

              There would be NO COMPETION in the marketplace
              Infringement involves MUCH more than just competing. You are making infringement look like a very simple, and black and white issue, but it's not. Someone can infringe on a company's name or other intellectual properties in many ways. Competing is only one thing.
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      • Profile picture of the author sbucciarel
        Banned
        Originally Posted by bengirwb View Post

        Just did another Google search.
        Came up with
        applesucks.org
        applesucks.wordpress.com
        why-apple-sucks.com
        mac-sucks.com
        applesucks.nl
        applesucks.us

        I quit reading on page 3 of the search results.

        The trademark word apple is used, but they do not infringe because they are not COMPETING with apple.

        And if you did your homework, you'd find that a critical non-commercial review of a product falls under Fair Use. I have a HughesNetRipoff.com site that falls under Fair Use. A "review" site for commercial purposes does not fall under Fair Use.

        You can also launch a parody site or a non-commercial fan page using a trademark under Fair Use.
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      • Profile picture of the author davezan
        Originally Posted by bengirwb View Post

        The trademark word apple is used, but they do not infringe because they are not COMPETING with apple.
        Not necessarily compete, but to confuse. Likelihood of confusion is what TMs
        essentially aim to prevent from happening.

        Feel free to look it up or verify with a licensed legal expert with lots real-world
        experience on this subject.
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        David

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    • Profile picture of the author paulie888
      Originally Posted by bengirwb View Post

      I just Googled "ipad"
      At the top of the first page is
      ipadreview.com

      This isn't an Apple site.

      Infringement is when you try to COMPETE using someone's brand name.

      A review site is not COMPETING with the product ipad.
      If everyone was jumping off a cliff, would you do it too? Just because you see that site up there does not make it legal or permissible. Though Apple hasn't caught on to this site yet, I'm pretty sure it'll be gone in a few weeks (if it even takes that long).

      Apple is fiercely protective of its trademarked names (it infamously wanted to file for a trademark on the term 'pad' or any variation of it), and right now the iPad is one of its crown jewels. Believe me when I say that they'll go after anyone using the term 'iPad' in their website names with a ruthless vengeance.
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    • Profile picture of the author Don Schenk
      Originally Posted by bengirwb View Post

      I just Googled "ipad"
      At the top of the first page is
      ipadreview.com

      This isn't an Apple site.

      Infringement is when you try to COMPETE using someone's brand name.

      A review site is not COMPETING with the product ipad.
      Let me ask two questions:
      1. Are you an attorney, specifically a patent/trademark attorney?
      2. Are you giving folks here legal advice?

      :-Don
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  • Profile picture of the author bengirwb
    The original question was

    "Lets say that I own a domain like appleipadreviews.com.
    Is that domain an infringement"

    *******

    Now after several responses comes this


    "And if you did your homework, you'd find that a critical non-commercial review of a product falls under Fair Use. I have a HughesNetRipoff.com site that falls under Fair Use. A "review" site for commercial purposes does not fall under Fair Use."
    ********

    Thanks for finally agreeing with me. A review site, using any trademark name, is non-commercial and therefore does NOT COMPETE.

    The original poster did not indicate that his review would be for commercial purposes. But perhaps he can better answer that point.
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    • Profile picture of the author davezan
      Originally Posted by bengirwb View Post

      Do you really think someone would go to
      applesucks.us
      with the expectation that he was ordering an apple product?
      As lawyers would say, it depends. Domain names don't necessarily infringe just
      on their own, and it can depend on a variety of factors.

      Using the example, let's say someone searched online for apple and ventured
      into applesucksdotus or whatever. The site gave negative reviews on Apple's
      products and nothing more.

      That's allowed under certain situations. But let's add a twist to that.

      Someone goes to that site and reads its content. The site also featured some
      links to competing products, and various judges and mediation panels rather...
      frown on that.

      Note: that's only one, limited example of confusion. There's a bunch of others
      out there, but this should give an idea.

      Thing is, the (arguably) average consumer is not aware of trademarks and how
      exactly they function. Many aren't necessarily savvy, and usually perception is
      not rational.

      Of course, it ultimately depends on what one intends to do with a site bearing
      its trademark namesake. If they intended to register a domain bearing its mark
      to, say, capitalize on it without its mark holder's consent, then expect trouble.

      Anyway, the important thing here is to educate. And not to give legal advice,
      which is something only (retaining?) a lawyer can do.

      Good night there.
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      David

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    • Profile picture of the author paulie888
      Originally Posted by bengirwb View Post

      The original question was

      "Lets say that I own a domain like appleipadreviews.com.
      Is that domain an infringement"

      *******

      Now after several responses comes this


      "And if you did your homework, you'd find that a critical non-commercial review of a product falls under Fair Use. I have a HughesNetRipoff.com site that falls under Fair Use. A "review" site for commercial purposes does not fall under Fair Use."
      ********

      Thanks for finally agreeing with me. A review site, using any trademark name, is non-commercial and therefore does NOT COMPETE.

      The original poster did not indicate that his review would be for commercial purposes. But perhaps he can better answer that point.
      Do you seriously think that the ipadreviews.com site does not have any commercial intent? Have you even looked at it? Or are you just arguing for the sake of winning this silly argument?
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    • Profile picture of the author sbucciarel
      Banned
      Originally Posted by bengirwb View Post

      The original question was

      "Lets say that I own a domain like appleipadreviews.com.
      Is that domain an infringement"

      *******

      Now after several responses comes this


      "And if you did your homework, you'd find that a critical non-commercial review of a product falls under Fair Use. I have a HughesNetRipoff.com site that falls under Fair Use. A "review" site for commercial purposes does not fall under Fair Use."
      ********

      Thanks for finally agreeing with me. A review site, using any trademark name, is non-commercial and therefore does NOT COMPETE.

      The original poster did not indicate that his review would be for commercial purposes. But perhaps he can better answer that point.

      I didn't in any way agree with you, but arguing with you is simply not worth my time. Someone who refuses to use Google to find the correct information and gives out bogus legal info in a forum just isn't worth arguing with. This is an internet marketing forum so the vast majority of questions about websites are for websites with commercial intent. How many questions do you see in this forum where the poster has no intention of making money?
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  • Profile picture of the author donhx
    Originally Posted by maiko2299 View Post

    Lets say that I own a domain like appleipadreviews.com.
    Is that domain an infringement? This is just an example.
    Thanks, I do own a similar domain name in which I have
    received "CEASE and DESIST any and all use of the Domain Name." Email.
    kind of fishy though because there is no contact name.

    Big companies and their lawyers supply contact data. Make sure you are not being scammed yourself.

    It is true that companies have the right to protect their trademarks, but some do and some don't. Some don't mind ripping off others (like Apple did with the Beatles and with the use of iPhone, which they had to license from the company who owned it), but they will fight like dogs if they think their rights might be violated. I know you used Apple as an example, but I'm just sayin'. Other companies are selective when they do enforcement so you may never hear from them.

    My advice would be to find out who sent the notice to you. It could be defective notice, and meaningless, if it was not properly prepared. If it turns out to be a genuine C&D Order, then surrender your domain name gracefully and quickly.

    No, I am not a lawyer, just been around a long time.
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  • Profile picture of the author maiko2299
    Wow I have been asleep at the wheel I guess, You all have good arguments, I did take the site down. I don't need to get into a pissing match with Goliath . However I don't think that the order was legit, I responded and heard nothing back, the email had no person to contact it was simply signed ip legal department. probably a competitor

    With that said I personally believe that my site was an infringement. I did hope to make a few bucks off the brand name. Actually I did make a few bucks with the site.

    Just another note the appleipadreview was an example. I used a domain that had the TM/product name. com
    the traffic was pretty amazing, 345 visits in just 2 months, without doing too much with it...

    Live and learn!
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    • Profile picture of the author paulie888
      Originally Posted by maiko2299 View Post

      Wow I have been asleep at the wheel I guess, You all have good arguments, I did take the site down. I don't need to get into a pissing match with Goliath . However I don't think that the order was legit, I responded and heard nothing back, the email had no person to contact it was simply signed ip legal department. probably a competitor

      With that said I personally believe that my site was an infringement. I did hope to make a few bucks off the brand name. Actually I did make a few bucks with the site.

      Just another note the appleipadreview was an example. I used a domain that had the TM/product name. com
      the traffic was pretty amazing, 345 visits in just 2 months, without doing too much with it...

      Live and learn!
      It sounds like it was probably a bogus email from someone who tried to scare you about the domain, especially since you didn't hear back from them. Any way, at least you got something good out of this, since now you know better than to purchase domain names with trademarked names in them. It's also a good thing you didn't pick up a domain with an Apple trademark in it, as they are definitely one of the more sue-happy corporations out there.
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  • Profile picture of the author Black Hat Cat
    Banned
    Originally Posted by maiko2299 View Post

    Lets say that I own a domain like appleipadreviews.com.
    Is that domain an infringement? This is just an example.
    Thanks, I do own a similar domain name in which I have
    received "CEASE and DESIST any and all use of the Domain Name." Email.
    kind of fishy though because there is no contact name.
    It probably is infringement. That doesn't mean the email you received is legit however. Just because your site infringes on trademark doesn't mean any yahoo can make you cease and desist from using it.
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    • Profile picture of the author sbucciarel
      Banned
      Originally Posted by Black Hat Cat View Post

      It probably is infringement. That doesn't mean the email you received is legit however. Just because your site infringes on trademark doesn't mean any yahoo can make you cease and desist from using it.
      That's true. The fact that there was no identifying contact info from the legal department and that he could not respond to it makes it suspect to me. Probably a good move not to use it anyway rather than waste time on it when the legit C&D could come at any time, but if I wanted to keep it for awhile and got an email from someone who did not identify themselves and could not be contacted, I would ignore that email.
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  • Profile picture of the author ankitnagpal
    Originally Posted by maiko2299 View Post

    Lets say that I own a domain like appleipadreviews.com.
    Is that domain an infringement? This is just an example.
    Thanks, I do own a similar domain name in which I have
    received "CEASE and DESIST any and all use of the Domain Name." Email.
    kind of fishy though because there is no contact name.
    sell the domain to me. They can't even touch me here in India.

    Actually, you can host your domain in a county where the plaintiff has no presence. And apply for privacy using domain register.
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    • Profile picture of the author bobsilber
      Originally Posted by softsolutions View Post

      sell the domain to me. They can't even touch me here in India. Actually, you can host your domain in a county where the plaintiff has no presence. And apply for privacy using domain register.
      Actually you are wrong. That is the problem with relying on legal advice from a marketing forum.

      India is a member of the Madrid Protocol along with about 78 other countries throughout the world. When applying for a trademark all you do is check off a little box in the countries you want protection in and for a small additional fee, when approved, you will have a registered mark in those countries.

      And yes, additionally, what davezan said. With ICANN's Uniform Domain Name Dispute Resolution Policy, I don't even have to leave the comfort of my office.

      .
      .
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      • Profile picture of the author kindsvater
        Bob, don't know if you saw this thread from earlier this year as it was moved to the off-topic forum:

        http://www.warriorforum.com/off-topi...r-domains.html

        - another way to lose your domain.

        Here is a possible scenario. Fraudster X is in India so they think you can rip-off Victim Y in the US with impunity. Victim Y decides to file a suit in the US. Naturally, Fraudster X defaults, but does not care, thinking the judgment from thousands of miles away in another country is worthless. Victim Y then uses the above case to take Fraudster X's domains from him.
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        • Profile picture of the author bobsilber
          Originally Posted by kindsvater View Post

          Bob, don't know if you saw this thread from earlier this year as it was moved to the off-topic forum:
          Hey Brian,

          Missed the thread but remember the Zuccarini case. Some good lawyering involved. Of course, the significance of the ruling, for most of us, is lost in the reality that most domain names wouldn't be worth the effort and expense to go after to satisfy a judgement, unless of course, you ran across a valuable one.

          .
          .
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  • Profile picture of the author kindsvater
    I've avoided this thread because it asked for a legal opinion for a specific domain, and I don't give legal advice on the forum.

    But given the very interesting posts here, consider the following:

    The Yahoo/YooHoo example was correct, but used the wrong companies.

    Instead, consider Delta Airlines and Delta Faucets.

    A trademark does NOT give the owner exclusive rights to any use of that word. The purpose of a trademark is to avoid confusion in the marketplace about who is responsible for a certain product.

    (Some famous marks can get close to this through a doctrine called dilution, but that is rare.)

    That is why multiple companies can have the same trademark. They are in different industries.

    If I register the domain:

    WhyBrianLovesHisiPad.com

    Is that a trademark infringement based just on the domain?

    Absolutely not.

    Why? It has the trademarked word 'ipad' in it.

    Because no one looking at that domain would believe it is an Apple official site.

    No confusion so no trademark infringement.

    Finally, consider the problem ....

    Almost every word is trademarked. I've seen numerous Warriors over the years come in here and proclaim a domain is infringing because it has a trademark in it, only to find out their domain also has a trademark in it. It can be hard to avoid.

    And ... there are state trademarks.
    And ... there are unregistered trademarks.
    And ... there are trademarks in countries other than the US.

    It doesn't seem productive to me to worry about the trademark issue.

    The question is rather, is there initial confusion from the domain?

    ipad.com versus whybrianloveshisipad.com

    And what use is the domain being put to?

    Recently, Toyota lost a federal appellate case over the domain buy-a-lexus.com - used by people selling Lexus cars.

    My Law Office uses kindsvater.com, but my distant relatives at Kindsvater Trucking have been in business a lot longer. Am I at risk of losing my domain? Nope.
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  • Profile picture of the author bobsilber
    As most senior forum members know, you shouldn't get your legal advice from marketing forums. Consult your attorney for legal advice. Trademark issues can be complicated. For example, a person with a registered trademark may not have priority rights and may not be able to prevent use by an unregistered user having senior mark rights, in certain cases.

    Also, most people don't know that the holder of a registered mark is required by law to defend it, in order to keep it. That is why cease and desist letters are routinely sent to those seen as infringing on a trademark.

    .
    .
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  • Profile picture of the author Rocked Steady
    after all that oprah/dr. oz **** berry stuff I would say it is definitely infringement.
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    • Profile picture of the author kindsvater
      It's about time the Exalted Grand Poobah posted in one of these threads. Hopefully there are most posts to come.

      Not to harpoon attorney's fees, but for many of these issues there is no easy black and white answer. Many complicated factors tend to arise that can make it difficult even for judges.

      Yes, it would be nice if there was an easy checklist everyone agreed upon for what is proper or not. But that does not exist.

      But after what must be a hundred of these trademark in the domain threads, and after reading hundreds of domain dispute cases, in my view a lot depends on the legitimacy of the website and use of the mark.

      trademark.com is not necessarily infringing (my Delta example). On the other hand, trademarksucks.com websites are not immune from liability (sham sucks site that is otherwise an infringement).
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      • Profile picture of the author davezan
        Originally Posted by softsolutions View Post

        sell the domain to me. They can't even touch me here in India.

        Actually, you can host your domain in a county where the plaintiff has no presence. And apply for privacy using domain register.
        Without even knowing the actual trademark holder the OP is referring to, how
        do you know they can't "touch" you? You'd also be surprised to know there's a
        process to help a trademark holder obtain a .com domain from its registrant no
        matter where they're located
        in the globe, albeit it can be a bit costly.

        Oh, and that same process can also pierce domain privacy. I'd share you a few
        examples from my ex-registrar life if I could.
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        David

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