Legal Concerns When Registering Domain Names


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As the world becomes increasingly connected to the Internet, concerns from the real world are spilling over into the Web. For example, what are the legal concerns when registering a domain name? Can one violate a trademark or copyright with a domain name? If so, what kinds of remedies and protections exist?

For someone to be able to view your website, you need to have a Web "address" or URL (uniform resource locator). Usually, your URL will be related to the name of your company or a function it performs. Of course, that is not mandatory, and many have made a profitable life by buying domain names and waiting for someone to express interest in the URL and selling it to them at a premium.

Of course, choice of a domain name involves more than selecting a name not already registered by someone else. A domain name can function as a trademark or service mark, which is a term or symbol used to create an exclusive association in the marketplace between a company and the goods and services it sells. Think, for example, of Google, AOL, or Facebook. Their company and web address are virtually synonymous, as are hundreds of other companies. If your choice of domain name is so similar to another company’s domain name, or other trademark or service mark, that it is likely to cause confusion among consumers and your company may be subject to allegations of trademark infringement.

For example, you would not be likely to get away with starting a website called facebook-illinois.com because of its close relationship to the well known Facebook domain and trademark, and the likelihood that this could confuse consumers into believing your site is affiliated with the better known Facebook. Thus, even though the address may be available for registration, it is unlikely you could use it for anything without immediately drawing a lawsuit!

Thus, simply determining whether a domain name is available for registration is not enough. Companies should consider having a trademark search performed with the assistance of competent legal counsel to determine whether their choice of domain name creates the potential for liability for trademark infringement. Remember, a regionally recognized company could have an infringement claim even though you have never heard of them in your location because the Internet reaches into virtually every corner of the world.

Similarly, if your site uses a copyrighted name or expression, you may also be subject to liability. For example, if your site incorporates the name of a certain well-known boy wizard from England and contains information about the movie and book series or other fan topics, there is a possibility that it could be considered an infringement of copyright AND trademark.

Should you violate someone's trademark or copyright, your hosting company will likely not defend you. If the hosting company is threatened with legal action, it may turn around and sue you or your company for indemnification of any losses it may suffer as a result of your infringement. Similarly, you may be directly liable to the owner of the original intellectual property, meaning you could get walloped by lawsuits from more than one entity.

So, if you are considering registering a new domain, consider contacting a qualified, experienced intellectual property attorney who can guide you through the process of determining whether your site will potentially infringe someone's trademark or copyright.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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