Domain Trademark Test 101

There was a lot of debate this weekend over PepsiCo’s recent action to request the domain TropicanaField.com from its owner (see the topic on thedomains.com)

In this particular cause I made it known that our side is with Pepsi for reasons some agree with and some do not.  All is fair when it comes to debate however instead of posting another comment on Mike’s blog about the topic I wanted to explain in “simple theory” what we consider the most basic trademark test when registering or buying a domain name.

First, I’m not talking about true generic domains such as cheaptravel.com or lowflights.com – Sure, companies can (and sometimes will) try to use an existing trademark to grab a generic but for the most part they are gambling because they can afford to and really have nothing to lose.

The trademark test I’m referring to is for those domains you may think get traffic or would be fun to build a website around.  TopicanaField.com is surely one of those names a baseball fan could think would make a great name for a site.

However, Rob Sequin posted a comment (#42) and said it best

“I’m sure this guy new he was swimming in a dirty pool when he bought the domain”

That’s pretty much the basic test for us.

If you are buying a domain name and think the domain is great because it has words which belong to a trademark that is closely related to your development idea then pass on it.

Your idea may be original but your marketing technique is pre-k at best.

Isn’t the whole point of starting something online to carve your own little niche in this world?  How are you doing this by using words that come from somebody else’s hard work?

Anyone that cries wolf when they “get caught“ is simply asking for public support and trying to beat the legal system when they knew from the start it possibly could end up going this way.  Granted, some registrants will not know of an existing trademark but the obvious trademarks should never be violated.  Of course, there are exceptions to the rule but with so many domains available for registration and even more available at reasonable prices in the aftermarket why would you want to add this additional exposure?

It might be cool to own a domain like TropicanField.com but cool in what circles?  Bragging to your friends that you own the name of the stadium?

In reality you are only asking:

1) Future buyers to devalue any worth to the name because of the possible trademark issues – if you developed the website to encroach or benefit from the existing trademarks use

2) To always add $5-$10,000 to your savings account for the possibility of defending a UDRP filing and that’s at the minimum.

3) Failing to take any steps to actually build a brand for your business long term

4) Asking for popular opinion to judge you as a cybersquatter.

I’m not saying this guy in particular is a cybersquatter however I am saying its not 1999 anymore.  We all know the rules and common sense must apply.

Of course, there are MANY exceptions to this but essentially it comes down to “if your desired use of the domain name is similar to the use of an existing trademark held by someone else than try to avoid registering a domain with words that belong to the existing trademark holder.  Get creative, register something else”

Back to Rob’s quote

“I’m sure this guy new he was swimming in a dirty pool when he bought the domain”

He’s right.  If you avoid these names than you can avoid getting your feet dirty but if you do, then don’t ask anybody to jump in and save you.

Be original – the internet has rewarded originality and creativity the most – far beyond any typos, trademarks etc.

It’s your time and money so build or buy something that reflects you – not somebody else’s hard work.

Some will agree – some will not.

It’s Monday, argue all you want … Day can’t get any worse