Legal Question in Business Law in California

Re: website name - copyright infringement??

(1) This would not be a copyright issue. This would be a trademark issue.

(2) The purpose of a trademark is to identify the source of goods. Accordingly, if your trademark is Widget and you're selling candy and someone else had a business called FindWidgets but they are selling car parts, no one is likely to be confused. This is why trademarks are issued in classes. In this case, you're both in the same class and the names are confusingly similar and so there is a likelihood of confusion. The likelihood of confusion test is what the trademark office or court would consider.

(3) You can go to the uspto.gov site and use the TESS search engine to see if your name is already registered in your class. Hey, there might even be someone else out there in another state! Even if your competitor doesn't have a federally registered trademark, the competing business has some common law trademark protection rights. A federally registered mark is, however, prima facie evidence that the mark is protected and was first in use.

(4) If the terms used in the name are pretty generic, they may not be subject to trademark protection at all. This is why drug companies use those funny made-up names that are a unique identifiers. For instance, Kleenex used to be a great trademark because it was a unique word until it has become synonymous with tissues and is now fairly generic. If your site and the competitor's site are using generic words, you may be okay. That bring us to practical considerations and the question whether okay is enough.

(5) From a practical standpoint, you're just launching and so you don't have a lot of good will built up on this name yet. It would not be difficult to change, just irksome. I know people get really attached to product or business name, but what happens if you become really successful? Will there then be an issue of confusion where customers find the competitor's site/product and think they are dealing with you? Considering this issue, you may be best off to change now.

(6) Consider consulting with an IP attorney and doing it all the right way. You can have an inexpensive initial search done on a new business name and get your own trademark (or service mark). You won't have to worry about a competitor or defensive trademark holder from another state knocking on your door with a cease & desist letter far enough into your venture that you would have customer/market repercussions to a name change.

-- Good luck with your business venture!! -Cathy

Re: website name - copyright infringement??

I've read Ms. Cowin's response and she is exactly right. If anything, this is a trademark issue, not copyright; and registering and owning a domain name is NOT the same as registering and owning a trademark.

I can't say there is no relation whatsoever between a domain name and a trademark, but one does not signify or equate to the other.

What you need to worry about is whether there is a clash of trademarks, registered or common-law, not domain names.