Let's just say for the sake of discussion that someone got an idea for a name like 123host.com .
He likes it so much (thinks of all the posiblities with such a name) he rushes out and registers it along with 123.net and 123.org .

Not that I would do such a thing. But someone might. (Hey it's just a story!maybe)

Anyways; he gets thinking about it later and wonders upon variations. So he opens up his browser and types 123host ing .com . And BINGO! There it is; big as life!

The only thing is, it's just a placeholder for 123hosting.com and it was registered a year earlier.

So now the delema. Does he still proceed with developmental plans in hopes he gets his site up first?(After all, they're apparently going to offer the same type of services).

Or; are the names different enough (the ing thing) to protect *both* parties?



:eek:

Your best bet might be to consult someone in the legal arena (with trademark experience). I will mention one thing that might help you. In order to apply for a trademark, the mark must be in use. I'm not certain that registering the domain exactly constitutes 'use' and if no conflicting trademark is found, I'd register it ASAP.

You might want to give http://www.netatty.com/index.html a look, they cover quite a bit on Trademark, copyright and domain law.

Assuming this is, as you describe, a hypothetical situation, and neither you nor anybody reading the following will construe it as legal advice:

One acquires trademark rights through use of a mark in commerce to identify the source or affiliation of goods or services. A "coming soon" page doesn't make the grade. Assuming that "123hosting.com" has done nothing else with the mark "123hosting," they have not acquired trademark rights in the term.

If they had acquired trademark rights, the mere addition of "-ing" would afford little protection to "123host.com," because the "123hosting" mark is distinctive, nearly identical to "123host," and "123host" and "123hosting" would be in the same business using the same channels of trade.

[Per your specification, this has been a test, and only a test. Had this been a real legal question, you would have been instructed to engage an attorney who would weigh all the relevant facts, conduct legal research as necessary, and render a legal opinion.]

Thank all of you. I truly appreciate your candor while we wade through this "hypothetical" situation

As it stands 123hosting.com has a "comming soon" page. Now, maybe they've "been somewhere else" and are "comming back." I don't know.

I do know that 123host.com is probably a very young company with limited finances.

So; are you saying that 123host.com must have a site, offerring legitimate services before 123hosting.com launches a site offering the same (presumeably) services is the best possible solution to avoid the hefty legal bill?

What he's saying is, consult someone who can properly research the exact situation. Often trademark situations are grey and the only real way to be sure is to actually find out.

Jonathan and I mentioned one thing, that for them to trademark the 'name' (which seems to be your biggest concern at the moment), they'd actually have to use it.

It doesn't seem as if they are using it yet, but the only real way to be sure is to research it to be more certain. For all you know, a site could be going up as we speak along with an application for trademark.

I really like this thread. I'm interested in this stuff, but don't really know much about it. Check out this site, though:http://nameprotect.com/ And especially this URL (http://nameprotect.com/reference.html) which will inform you of different types of names. If I should guess, I would say there would be no problem having 123host.com owned by you and 123hosting.com owned by another company - because 'host' is a generic term, and so is '123', I guess. I mean, if '123 wasn't generic, then how can it be a standard name-spin prefix, like 'easy', 'quick', '1-800', etc. And cf. nameprotect.com, generic names can't be trademarked.

I am surprised to learn, however, just today in fact, that top-bitch Madonna has won the right to domain name madonna.com, previously owned by someone else. I would have thought that 'madonna' would have been considered as generic too. But then, I take it she got it by the same 'logic'/'justice' that made that wanker Michael Jackson not a convicted paedophile. . .

I have the same kind of problem as you (who started this thread). I feel I need to optain a variation of my URL, which is currently taken but not in use, before I'll be home safe. But when you start to think about URL variations and extenstions (cf. those offered by new.net) you come to realize that it never ends. I haven't bought a single domain from new.net because they aren't Internet-wide - as yet! If they do eventually become Internet-wide, then I guess I'll regret not having purchased some cool ones. I won't worry about it, though. In fact, I don't even think I'll buy the .info version of my domain name. I can see the nice thing about having a generic .info name, like, say, drugs.info, but what's the point in having yourname.info when you already have the .com, .net, .org and .biz extensions? I think .info is distinctly uncool, very unlike new.net's .mp3 and .arts, for instance. Well, .arts should have been .art, rather. Dot-info is simply too long. You may be worried about what is going on at yourname.info if you don't buy it, of course, but then you may also worry about what is going on at ihateyourname.com, yournamescam.com, eyourname.com, etc. etc.

My strategy is just to go ahead pursuing whatever I want to do and if trouble should arise, I have at least registered the domain names in good faith so the alternative strategy of selling them should be open to me. I have a couple of domain groups (.com, .net, etc.) in case I need to change horse.

Keep posting!
Anders

Check out http://ivanhoffman.com . I am sure either his site has some info on this or you can e-mail him.

Well, without having any knowledge of the Madonna domain dispute, I'd guess that the site might have possibly been a fan or merchandise site involving the singer 'Madonna' in some way. Madonna is of course, The Virgin Mary and if the site involved some sort of religious connection, I can't see how the domain would have been awarded to the signer.

I'd like to add a little to what I stated above, having thought a bit more about it. When you add two generic names, you may end up with a proper trademarkable name. Cf micro + soft. On the other hand, beer + can still remains generic. Further, as Chicken pointed out, the primary meaning of Madonna is of course the Virgin Mary, which is, not generic (I suppose), as I first said, but a proper name, like Jesus or Zeus - quasi-generic? However, madonna, with lower case m, has the derived meaning of 'picture or statue of the Madonna' according to my OED. This is the meaning I was thinking of in the above. I was thus tacitly insisting on the URL having a lower case m, which implies a generic term. But then all URLs are of course lower case, so I doubt if this argument is valid. It would mean that preference in URL meaning is always given to the generic version of the name. Lower-case (generic) version is not always derived from the upper-case (proper-name) version. Sometimes, it's vice-versa, as in the case of Jaguar (the car) vs. jaguar (the animal). Accoring to NameProtect's logic, as I understand it, 'jaguar' should not be trademarkable, as it is originally the name of a type of animal. I suspect, however, that Jaguar, the car manufacturer, owns the name. Or maybe the originator's name was Jaguar? I don't know. But I still hate Madonna and Micael Jackson and Prince and . . .
Cheers
Anders
PS: Link to the madonna.com domain name dispute (http://www.ecommercetimes.com/perl/story/4560.html)