The first paragraph of this article provides a comprehensive overview of the rights and responsibilities associated with domain name registration. It delves into the nuances of trademark considerations, the implications of distinctive and non-distinctive domain names, and the legal avenues available to those who find themselves in a dispute over a domain name warning letter.
Domain Name Registration: The Basics
As a rule of thumb, you can register any domain name that hasn’t been claimed by someone else, provided it doesn’t infringe on any existing trademarks. If your chosen domain name is unique and distinctive, such as jtdbizopps.com, it may also qualify as a common law trademark. However, if your domain name is more generic or descriptive, like home-business.com, it won’t be considered a common law or registrable trademark.
In the unfortunate event that you lose your domain name registration and it’s not a distinctive name, your options for recourse are limited and potentially costly.
The Intersection of Domain Names and Trademarks
If your domain name is distinctive and not commonly used, it’s likely to be considered a common law trademark. If this is the case, it’s advisable to register it as a trademark to strengthen your legal position.
The law typically favors the original trademark owner over the domain name holder. The U.S. has enacted the Anti-Cybersquatting Consumer Protection Act to protect trademark owners from cybersquatters. Under this Act, you can sue a cybersquatter to reclaim your domain name and potentially receive damages.
The Act defines actionable offenses as those where a person has a bad faith intent to profit from a mark and registers, traffics in, or uses a domain name that is identical or confusingly similar to that mark.
Identifying and Pursuing Cybersquatters
Identifying the perpetrator can be a challenge. However, the Anti-Cybersquatting Consumer Protection Act allows for an in rem civil action against a domain name, meaning the court can order the surrender of the domain name itself.
If you can identify the offender, potential remedies include injunctions and damages, with statutory damages ranging from $1,000 to $100,000 per domain name in cases where your personal name is involved.
Exploring Generic Legal Avenues
Regardless of whether you can pursue action under the Anti-Cybersquatting Consumer Protection Act, there are other legal avenues available. These practices can be classified as extortion and criminal defamation.
You can write a cease and desist letter to the offender, threatening to report them to the District Attorney, the police, and the Federal Trade Commission, as well as initiating a civil suit. If the offender doesn’t comply, you can report them.
If you have the resources, you can also bring civil proceedings against the offender. In some cases, the most cost-effective option may be to pay the demanded amount to regain control of the domain name.
However, prevention is always better than cure. Therefore, it’s crucial to keep track of your domain name due dates to avoid such issues in the first place.