etiquette re domain names

  flick 00:09 19 Nov 2004

I registered a domain name and subsequently discovered that someone else in the same line of business (and very well known) has an almost identical name. How much does this matter?

What if I choose a different name but find someone else has registered a similar name but in a totally different business?

I realise there is nothing to stop me using the names I have registered but are there any ethical or business reasons why I should not?

How important are the 'country codes' on domain names? For example, if we want to do business in the uk and say, France, is it important to have the domain name for .com and .fr and if so, how would I go about registering the .fr name?

  steve263000 11:28 19 Nov 2004

As far as I know, you can use whatever name you want if you buy it. There might be a case against you if you were selling something that a competitor sold, with a similar name. For instance if you bought McDonalds. net and sold burgers. When I bought my domain name I was offered, but did not take up several similar names, so they are out there to buy. As for Fance, not a clue. However if I am wrong, someone will let you know.

  Forum Editor 01:14 20 Nov 2004

you can't blithely go ahead an use a domain name that's similar to a 'household name' with impunity. If you do, you may well find yourself faced with a 'cease and desist' letter from some heavyweight corporate lawyers. Internet law is often a grey area, but in this field there is some solid case law. Probably the best-known example is that of Julia Roberts. In this case someone registered the domain name: and then tried to sell it to the highest bidder. Julia Roberts took legal action, and her lawyers claimed that in the public's mind the name 'Julia Roberts' has acquired what's known as a 'secondary meaning' - that is, people associated the words themselves with the person of the actress, and therefore she had a prior claim on all domain names containing the words.

Julia won her case, and the registrant of the name lost his right to use it. In taking this action Julia struck a decisive blow on behalf of all very famous names, and although there have been other similar cases fought (notably by Bruce Springsteen) which haven't been so successful for the celebrity concerned, it's looking as though the principle has been established.

If you are successful in registering any name which might, in the public's mind, be confused with the 'real thing' you may expect - sooner or later - to lose it, or at the very least to have a legal battle on your hands. This 'secondary meaning' principle applies to corporate entities as well - try registering any name with say, Estee lauder in it and see what happens, or Chrysler, or Budweiser, or any one of a million big-name companies.

There is another risk as well, (although obviously this doesn't apply in your case) and that's the chance that you could be accused of 'passing off'. This involves an individual (or business entity) setting out to look like another, better know person or company, and is a criminal offence.

  Sir Radfordin 10:03 20 Nov 2004

As pointed out already the law isn't that black and white. Generally is something is a registered trademark you can't use that as a domain name. With other 'famous names' my understand is that where they have been used for a genuine purpose then you stand more chance than someone who registred a domain to exploit it for profit.

Say my name was Ron Macdonald. I may want to register just because I wanted a family website. If however I had registered RonMacdonald or even ronaldmacdonald and then tried to see it to the US firm McDonalds for a profit it is likely that the 'cease and desist' letter would be coming may way.

It seems that the law at the moment looks more at the intentions of use rather than anything as black and white as you can do this with this, but not that with that.

  flick 10:50 20 Nov 2004

In order to clarify the situation, the domain I registered is - we plan to put photos of Iceland on the web and if anyone's interested, sell them. I asked a friend in Iceland if he could register for me and he came back with the info that a well known photographer in Iceland uses as his domain.

We don't want to step on this man's toes, and had already started casting around for an alternative, and this time checking for near matches. The best we have have found so far is - belongs to an ice hockey photo specialist, and the site does not appear to be active. I have also checked and - not in use as far as I can tell, although I do know that is in use, also by a well known Icelandic photographer.

Apart from as a domain name, we also plan to use it to watermark images (so the name needs to make sense), combined with lowish resolution, as a means of protection

As it happens, I have been designing our site using a 30 day trial of Net Fusion Objects (uploading facility disabled) and then bought the domains and a web hosting package from 1 & 1 becaude they are offering the full version free. It hasn't arrived yet - I ordered it almost 3 weeks ago - but it also means that I haven't been able to put the site up yet.

Thanks for your helpful input so far, any further thoughts?

  Forum Editor 11:18 20 Nov 2004

was to illustrate how the use of a famous or 'household' name can be tricky. When you come down to the difference between flick dot co dot uk and flick dot com there's no question that one name could be registered by you and the other by someone else. If however you were so famous that the word 'flick' had acquired that magical 'secondary meaning' things would be a lot different. If the general public had come to associate the word with you, the person in the same way that we associate the words 'Julia Roberts' with the film star, then you could take action to force anyone else to relinquish their use of the name.

There's another factor which is taken into account when disputes arise, and that's the question of the passage of time, plus use. If I have been running a website business on flickdotcom for five years, and you suddenly pop up with a similar business on flickdotcodotuk I could contest your use of the name on the grounds that I got there first, and that I have developed a business reputation based on my use. In most cases I would probably succeed in having your use of the name disallowed.

The fact that you have discovered this photographer's use of the name should be telling you something - he was there first, and with an almost identical name. The fact that your proposed site is going to have content that is in direct competition with him is another potential nail in the coffin. In the circumstances I would do two things:

1. Look for another name.

2. Approach this photographer and tell him what's happened. Ask him if he has any objections to your use of your registered name. If he says he hasn't then the problem's solved. If he does object (and I would) you can either ignore him and go ahead, or abandon the name for something else. If you go ahead you run the risk that this man will take action to stop you. If he succeeds and by then you have already established a business on the site you'll have the added hassle of explaining to all your customers why you suddenly have to change your name.

It's a tricky situation, but in such cases I always advise my clients to walk away - legal battles are simply not worth the hassle unless you have a very strong case, and in this instance you haven't.

  flick 11:31 20 Nov 2004

Thanks FE. We have already decided to go down your suggested route 1.
Do you think our suggestion will be ok? I've already spent quite a bit of time watermarking our database with, so given that I'm going to have to do it again, I'd rather make sure it's right this time.
Is it enough to check that a site is inactive by just typing in the URL?
The 1 & 1 domain registration page is very helpful in telling you which names have already been taken, but it doesn't cover other countries such as Iceland.

  Forum Editor 12:01 20 Nov 2004

it doesn't mean that the name is 'inactive' - although it does strengthen your case if a dispute subsequently arises.

My advice in those circumstances is that you publish to the name as rapidly as possible - even if you just put up a 'coming soon' page. When you finally have a site online, download the whole lot via your browser(as HTML pages) and save it to a CD. Print the pages and post them, plus a copy of the CD to yourself by special delivery. Don't open the package when it arrives, but keep it in a safe place. You'll then have a dated record, showing when your use of the name in a real sense commenced - all the files on the CD will have datestamps, and the printed pages will have the date on them as well.

If it ever comes to a dispute (which I doubt) you'll have some valuable evidence to hand.

  Forum Editor 12:04 20 Nov 2004

I deleted your duplicate post in the usual way, but the server has obligingly removed both instances. Nothing personal, I assure you.

  Sir Radfordin 19:30 20 Nov 2004

so we now know who the real editor is ;)

  Forum Editor 19:41 20 Nov 2004

and recently it's been fighting back. On several occasions it has deleted all instances of multiple posts when I've tried to delete the last one in the group.

I've flagged it as a problem, so we'll see if we can fix it.

This thread is now locked and can not be replied to.

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