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Forming new domain names? Here's how to avoid trademark issues

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Paying attention to trademark laws isn’t usually at the forefront of an entrepreneur’s mind. It might be something they’ll get too eventually, but to be honest, there are many more exciting things to worry about when you’re first buying a domain name. You want your name to be catchy and easy to remember, clever, short and sweet, etc. After all, your domain name is going to be connected with you and your company for the rest of your life—at least that’s the idea.

Unfortunately, it’s best to put all of those things second on the priority list. Without a little bit of trademark and legal knowledge, buying your domain name could go very, very wrong. As a small business owner, the sooner you can get used to always thinking about legalities first, the better. Thinking about your domain name is a good start.

A Quick Overview: The Basics of Trademark Law and What It Means to You

If you don’t know anything about trademark law, don’t sweat it. A trademark is essentially any logo, design, or even set of words that help distinguish one company from all of the others. The Nike “swoosh” is a great example of a trademark that everyone knows and recognizes, and if you try to use that “swoosh” for your own business then you’d be in some trouble.

The real problem happens when you run into smaller companies that have different symbols or names trademarked that you’ve never heard of in the past. Domain Broker and CEO of Media Options Andrew Rosener explained that these mix ups happen quite often: “You might have innocently purchased that domain name, but in the end it won’t matter. You could put your blood, sweat, and tears into your website, but you would still have to stop all of your efforts and start completely from scratch with something new.”

The whole idea here, why trademarks started, is so that consumers won’t be confused between two businesses. This also protects a business from having another company try to seem as though they are affiliated in order to piggyback off of that company’s success.

So what does this have to do with domain names?

It’s true that you can’t buy the exact same domain name as someone else (it would already be taken), but this doesn’t mean you’re safe. If your domain name is even slightly similar to the name of a trademark owner, you’re at risk of what is called “trademark infringement.” Even domain names that look similar but have a misspelling are not allowed.

Take the website Google.com for example. It’s a simple enough name and it’s even pretty general, but if someone were to take the domain Googles.com, it would likely be considered too similar or confusing to consumers, and those at Google would likely want to bring legal action to enforce the Google brand.

Avoidance is simple

As discussed above, this can get overwhelming and people can easily make an honest mistake. Below are a few tips to keep in mind when buying a domain name so that you don’t run into any trademark issues in the future:

1. Brainstorm alternative domains and check out already registered trademarks.

Of course the first tip is to brainstorm possible names that might overlap and then Google those names and check to see if they exist. However, you shouldn’t stop there (most businesses unfortunately stop at this point). Trademark attorney and Founder of Trademark Access Perry Clegg explained that, “Committing to a domain name before doing your homework is very risky and unnecessarily puts you at risk of infringing someone else’s trademark. A good start would be to do an internet search to see if someone else is using the same name for a similar business. You can also visit the trademark database of the U.S. Patent Trademark Office at www.uspto.gov to see is anyone has filed to register a similar mark. However, I would ultimately recommend using a professional clearing search service.”

2. Visit business name registers to do a more thorough check.

If you don’t want to go straight to Google or visit the link discussed above, there are plenty of name registers out there such as Thomas Register Online (found here) that can help you see what’s out there.

3. If you aren’t sure, reach out to the company you’re questioning.

Experts differ on whether or not this is recommended, but in most cases it’s usually OK to try and speak directly with someone at a company where you think there might be a conflict. See how they would feel about you taking a specific domain name and tell them a little bit about what you plan to do with it. This should give you a definite answer.

4. If something similar comes up, ask yourself several key questions to help you make the right decision.

You always have to make sure that you’re asking yourself the right questions about the company in question: Are you offering the same goods or services? Are your goods and/or services being sold to a similar audience or through the same channels? Would your website deter business away from the other website name? If the answer is “yes” to any of these three questions, it’s best to move on and stay safe.

5. Extra Tip: Always have a few other domain names picked out so you’re not tempted to push the envelope.

If you don’t have any other ideas in your head, you might see something similar and try to chance it. Completely eliminate the temptation by having a few choices. Scott Langdon, Managing Partner of SEO Company Higher Visibility, said that he deals with many different clients who almost give in to the “it will be fine” attitude. When I spoke with him, he said, “We have seen SEO clients that come to us and ask us about using domains that have competitors’ names in them in order to compete in the search results. While thinking about your competition ahead of time is a smart move, we always advise against this because of the potential legal issues. The risk just isn’t worth it in the end.”

To reiterate, if you are found using something that is trademarked you will have to stop using that domain name and could even be held liable for damages to the original trademark’s owner. This could get expensive and be fatal to your business if you’ve worked hard to establish yourself with that particular name. The best thing you can do is, as always, stop it before it starts.

Do you have any more tips regarding trademark law and domain names? Any personal stories? Let us know your thoughts in the comments below.

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