is this a trademark violation?

[solice0012]

So today I went searching for domains to buy and a found a bunch that are band names..

some of these bands are pretty well known, over 5 million online radio station plays, millions of views on youtube ect..

If I put up a site and try to monetize it with affiliate links for their albums or whatever can I get in trouble?

these domains are exact match to there band name

Any ideas on how to monetize sites like this would be appreciated as well --

 

[mdsurf]

i would snatch up those domains while you figure this out, if there that big of bands those EMD's are definitely worth some cash

 

[solice0012]

i would snatch up those domains while you figure this out, if there that big of bands those EMD's are definitely worth some cash

... ugg

 

[daveguy]

ya buying other ppl's brand names is copyright infringement if you're buying like tide.net and the real site is tide.com. Just get offshore domain accounts. Remember though, brands have a lot more money than you and will dish out millions to protect their rep. Look how taco bell reacted when some smuck spread a rumor about its shit beef. It was straight to court followed by milions of dollars in corrective advertising.

You could try monetizing with domain parking ads, but you can forget about SEO for the most part... you'll never outrank the real brand. Well hardly never....

 

[JohnnyRabbit]

Not worth risking it mate..

 

[artizhay]

I believe that is infringement. I read an article a while back about how people around the world bought Groupon (I think it was Groupon; at least some daily deals site) domains for their locales, thinking they would force Groupon to buy them, but they just got hit with infringement instead.

 

[solice0012]

You could try monetizing with domain parking ads, but you can forget about SEO for the most part... you'll never outrank the real brand. Well hardly never....

akk its a tough situation.. what is weird is a couple of the bands dont even have websites, just there social pages

 

[solice0012]

I believe that is infringement. I read an article a while back about how people around the world bought Groupon (I think it was Groupon; at least some daily deals site) domains for their locales, thinking they would force Groupon to buy them, but they just got hit with infringement instead.

hmm, can i just leave the domain parked, would it only be infringement if i try to sell stuff off of it?

 

[artizhay]

hmm, can i just leave the domain parked, would it only be infringement if i try to sell stuff off of it?

I believe the act of buying it is infringing, not just limited to what you use the domain for.

 

[hurn]

Buy a domain with brand name and ready spend money to proterct your domain. because they have more money, time and people than you...

 

[solice0012]

Well this was a good eye opener, I will definitely check for trademark infringement prior to buying a domain from now on.

 

[daveguy]

Hey man I made that mistake when I first started too. Some people are going to say how they've monetized a branded domain name on this forum. Good for them. Honestly if your looking for any real long-term income start thinking about branding your own product/service....Don't get sucked into the EMD game. It's appealing I know, and it does work, but if you're going to be spending the next couple of months of your life on this one site just get a domain you'll be proud to share with you friends. It'll pay off in the long run.

If you're interested in short-term income, though, just disregard any posts I've ever made. Not what I believe in or what I practice.

I gave away a 90k exact match domain name to someone on this forum actually because it wasn't worth the risk for me. ladygagaofficialwebsite.com
I wonder if the guy has made any money on it haha.

Feel free to PM me with any questions. That fact that you've came here concerned about you're decision shows you're dedication to wanting to win!

 

[solice0012]

Feel free to PM me with any questions. That fact that you've came here concerned about you're decision shows you're dedication to wanting to win!

Thanks! Should i just un-register these domains to be on the safe side?

Just losing $100 and a couple hours of search time doesnt sound so bad compared to 30k lawsuit lol

 

[daveguy]

Thanks! Should i just un-register these domains to be on the safe side?

Just losing $100 and a couple hours of search time doesnt sound so bad compared to 30k lawsuit lol

Nah keep em. They only got a lawsuit if you post some stuff that could hurt their brand. If you just park em you can claim due diligence and at worst your hosting provider will shut you down. No lawsuit if you're just parking.

 

[Expertpeon]

ya buying other ppl's brand names is copyright infringement if you're buying like tide.net and the real site is tide.com. Just get offshore domain accounts. Remember though, brands have a lot more money than you and will dish out millions to protect their rep. Look how taco bell reacted when some smuck spread a rumor about its shit beef. It was straight to court followed by milions of dollars in corrective advertising.

You could try monetizing with domain parking ads, but you can forget about SEO for the most part... you'll never outrank the real brand. Well hardly never....

No... it definitely is not
Please see the other thread on this issue where I give a case-by-case analysis of just this branding in domain issue.

http://www.blackhatworld.com/blackhat-seo/black-hat-seo/347064-using-keywords-brands.html

 

[solice0012]

No... it definitely is not
Please see the other thread on this issue where I give a case-by-case analysis of just this branding in domain issue.

Hmm, this is confusing.. So I could take these domain names and turn them into say... un-official fan site for the band -- something like that?

Maybe I should just seek legal advice

 

[fieldinspector]

Yes, it is a TM violation. While most bands do not have registered trademarks, they do have protection at common law. They probably won't take you to court because launching a dispute with a domain authority is easier and cheaper.

They would receive the domain and your hard work would go to waste (or they would start profiting from it). You don't have a bona fide reason to use their trademark name so you may achieve short term profits before the domain is taken from you. If you do take you to court they can receive all your profits as damages.

Not worth it.

 

[fieldinspector]

No... it definitely is not
Please see the other thread on this issue where I give a case-by-case analysis of just this branding in domain issue.

It seems there is a lot of confusion about trademarks in domains so I will try to explain it in a simple way.

Expertpeon linked to some American cases in the other thread showing that using someone's TM in certain situations would be deemed "fair use" and I do not necessarily disagree with that. However, I don't think it's relevant to the question, "Can I use a TM in a domain name."

TM owners have two options when someone uses their TM in a domain:
a.) Use the court system - Whether or not they will be successful will depend on the jurisdiction but most countries have signed international treaties (TRIPs for example) which mean most aspects of TM law is similar across countries. This is usually costly and probably not worth pursuing unless the person using the TM is making big enough profits to justify the costs of legal action. I don't really want to go into depth into TM law too much as it is far beyond the scope of this forum.

b.) The more cost-effective way is to launch a dispute with a domain authority. Wikipedia does a good job of explaining this process so I will quote from them:

The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a process established by [ICANN] for the resolution of disputes regarding the registration of internet domain names. The UDRP currently applies to all .biz, .com, .info, .name, .net, and .org top-level domains, and some country code top-level domains.

When a registrant chooses a domain name, the registrant must ?represent and warrant,? among other things, that registering the name ?will not infringe upon or otherwise violate the rights of any third party,? and agree to participate in an arbitration-like proceeding should any third party assert such a claim.

So basically when you register a domain, most people don't realise that they are agreeing to abide by this policy. Next time you register a domain read the fine print!

The Process

A complainant in a UDRP proceeding must establish three elements to succeed:
1.) The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
2.) The registrant does not have any rights or legitimate interests in the domain name; and
3.) The registrant registered the domain name and is using it in "bad faith."

So if you register an EMD with a trademark then the first element is satisfied. Mispellings will also satisfy the first element. The burden of proof for the second element is on the person who registered the domain. They need to show that they have rights in the domain name. If the band was "KISS" say, you could say your nickname is KISS or that KISS stands from something (Keep it Simple Stupid maybe?). This would be hard to prove in most cases. The last requirement is explained as follows:

In a UDRP proceeding, a panel will consider several non-exclusive factors to assess bad faith, such as:
1.) Whether the registrant registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark;
2.) Whether the registrant registered the domain name to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, if the domain name owner has engaged in a pattern of such conduct; and
3.) Whether the registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
4.) Whether by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, internet users to the registrant's website, by creating a likelihood of confusion with the complainant's mark.

I highlighted number 4 because it relates to the OP. You are clearly registering these EMD TM domains for commercial gain. Commercial gain (in past disputes) has been viewed quite widely. It could be Adsense ads on the site or affiliate links - all of this would fall under "commercial gain".

The list of past proceedings can be found here:

http www icann.org/en/udrp/proceedings-archive-en.htm

 

[Expertpeon]

It seems there is a lot of confusion about trademarks in domains so I will try to explain it in a simple way.

Expertpeon linked to some American cases in the other thread showing that using someone's TM in certain situations would be deemed "fair use" and I do not necessarily disagree with that. However, I don't think it's relevant to the question, "Can I use a TM in a domain name."

That's precisely what the cases I linked to were about... domain name issues.

I actually couldn't find a case where a trademark was enforced across a domain name unless that person squatted a domain the trademark holder previously owned.
Domain squatters still to this day own seescandies and seescandy for instance.

The ICANN rules are precisely of the kind that lend themselves to deny disparaging trademark names.
http://paypalsucks.com/ is still around... and there's not a damn thing paypal could probably do about that.
Legitimate complaints are still legitimate. Smear sites are a type of libel if untrue.
At any rate, profiting from selling the company's actual products and using their trademark in your domain is 100% legal.

Fieldinspector is the same tier 4 law student giving bad advice in the other thread.

 

[daveguy]

Fieldinspector - I agree with you

Expertpeon - while you make some valid points I still don't agree with you. Look up the case on Susan B Komen trademarking the incredibly broad slogan "for the cure." TM and copyright are just so incredibly broad. But I'm not a lawyer so i'll stop at that. What happened to http://walmartsucks.com/ .... now owned by Melbourne IT DBS. Which is a company that "provides the services and tools needed to manage and protect online digital assets. "