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I recently purchased one of those domain names like del.icio.us. While registering I found that delicious.com was being used.

Argument:

I found that delicious.com belonged to the same category as my to-be website. It served premium delicious dishes.

Counter Argument:

My to-be domain though belonging to the same category, specialized in serving free but delicious dishes or in giving out links(affiliate) to other sites serving premium delicious dishes.

Additional Counter Arguments:

1.delicious.com was not in English.

2.the del.icio.us in my domain name though having the same spelling, is not going to be used in the same fashion. For eg.(this may not make sense, because the names have been changed)the d in delicious on my website actually stands for the greek letter Delta(Δ/δ) and since internationalized domains are still not easily typable, I am going for the english equivalent.The prefix holds importance for the theme of the service which my website intends to offer.

My Question:

Can I use the domain name del.icio.us for my website?

How are these kinds of matters dealt?

(The domain names used are fictitious. And I have already registered the domain but have not started using it.I chanced upon this domain name because it was short, easy to remember and suited the theme of my website)

Update:

Can I use the domain name for an unrelated service. I have no wish to trample their rights.

Update:

Are there any real life examples of similar name use in different fields without the companies fighting it out? The domain name is pretty generic.

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3 Answers 3

There have been several instances where domains of trademarked terms (or terms similar to trademarks, e.g. typo-squatting) have been reassigned to the owner of the trademark.

Typically, this has been done when the domain was being used in a manner that might confuse customers into thinking it was affiliated with the trademark in question.

Whether or not this is a concern for you depends on several things. You've already admitted to operating in the same general market as the other domain (so trademark law applies, it wouldn't if you were in a totally unrelated market).

The fact that the other site does not use English probably (?) means that you are each targeting a different audience, possibly located in different countries which will work in your favor.

How well established the other domain is, will also be a factor. If they are a newcomer then they are unlikely to pursue the matter (or indeed have the resources to pursue even if they would like to). However, if they've been around for awhile and have a relatively successful site, they may be more inclined to protect their business.

However, the only way to be sure of your legal standing is to consult a legal professional.

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That is disturbing. –  abel Jan 7 '11 at 13:30

i remember how Microsoft has sued a little boy, young programmer Mike Row, who named his program like"Mike Row Soft"

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He wasn't a "little boy", he was 17, and he started a company called Mike Row Soft, not a prodct, and that is clearly an infrigement on copyright laws. –  Mark Henderson Jan 11 '11 at 2:53
    
@Farseeker: Well, 17 is still a "boy" to a lot of people (he's still a minor). Though "little boy" might be overdoing it. Though I don't think that is such a clear-cut case to most people. His name is "Mike Row", and the convention of appending "Soft" to the end of a company name is pretty common in the software industry (likely predating Microsoft). I mean, should a guy who's last name is "Nissan" be forbidden from doing business under his own name? Also, it would be trademark infringement, not copyright infringement. –  Lèse majesté Jan 11 '11 at 3:33
    
@Lèse, that Nissan case is a bit unusual as when he started his company and website Nissan were called Datsun, and Datsun changed their name (I did a case study on it years ago when studying, not sure what's happening with it these days). He didn't have a crystal ball, but the law is pretty clear about trademark use and what is an infringement. –  Mark Henderson Jan 11 '11 at 3:37
    
@Farseeker: IANAL, but I've looked over U.S. copyright and trademark law, and both are pretty vague/leave a lot of room for interpretation. In both categories of law, the laws (or landmark court cases) set forth a list of factors (e.g. similarity of marks, strength of the mark, proximity of the goods, degree of care likely to be exercised by the buyer, etc.) that determine if it's an infringement or not, but they're not clear-cut criteria. So it's essentially, whoever has the biggest legal guns wins. –  Lèse majesté Jan 11 '11 at 13:57
    
@lese there goes my registration fee –  abel Jan 11 '11 at 19:52

If they have a trademark that applies in your country (it's in a different language so I assume this would mean an international trademark) then I would strongly advise against using such a similar URL and site name. You are operating in the same field with the same name, which is what trademark law exists to prevent.

If they do not have a trademark then there is nothing stopping you.

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How are international trademarks covered? If it's trademarked for example in China, can I use the trademark in the US –  abel Jan 11 '11 at 12:13
    
I looked into it a little more, my IP law knowledge is really rusty. In some countries, you get some protection over a trademark even if it is not registered. I'm pretty sure for international protection, you have to register it. The Madrid Protocol is what countries sign up to for trademark agreement, and China is party to that protocol, so they may have an international mark that would have weight in the USA. You will need to check this. –  ZoFreX Jan 11 '11 at 13:54
    
Oh, and even if there is a dispute, if it's purely domain name based, it will go through the domain name dispute resolution process before legal action, I think. If your domain is .com then this would be with ICANN, otherwise it depends on the TLD. If you are actually trading under the name, or incorporate a company with that name, then it could go straight to legal action. Disclaimers: IIRC, IANAL, YMMV –  ZoFreX Jan 11 '11 at 13:56

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