Trademarks and How to protect your Domain name or Business name?

What do i do if some individual or business entity has registered a domain name closely similar to my commercial enterprise name, service or product name? Am I able to forestall them from using?

How to protect my domain name, business name? If these things worry you this article will help you in resolve your queries.

What is your Business name? Your business name also called to as your trade name is the name you register with your state to operate your business. You use it on your bank account, taxation/tax forms, and all other legal documents and compliances.

For example, TATA is the TATA Company’s business name.

A company’s Business name and Brand name can be same or it is not necessary that they are same, many companies have different brands For example Lenovo is a company with many brands like Ipod, Ipad, laptop etc.

To start operating, you need to clear your business name at the state level, and you need to determine if you will also use your business name as a brand name. Then

Once you have ensured that your brand name is clear and available for you to use, then apply for a trademark registration for that name.

You need to do a comprehensive trademark search so that you can protect it and grow your brand in the future course.

Trademark or Trademarking:

Is the best method to secure a product, service or business identity.

It has to be understood that your business name cannot be proprietary or trademarked till it happens to match to your product or service name.

Apply for the registration of a trademark or a service mark for your finalised, commercially used word, phrase or image, once you use that mark to identify a product sold or service performed "in commerce,"

Which conveys that you have used it for advertising and/or sale to customers.

Trademark rights come in to play upon use in commerce, with or without national registration.

National registration, however, expands and protects your trademark rights,

Giving your company a presumption of first use of the trademark in connection with certain goods or services.

If you have acquired trademark rights in word, either registered or unregistered ("common law"), then you have two ways of claiming rights against someone who uses that word to register a domain name.

Under ACPA (Anti-Cybersquatting Consumer Protection Act), In court, the proprietor of the mark must show that the other party has registered the name in bad faith and may bring legal action to (1) If the domain name is not transferred to the original mark holder or cancelled; and (2) Obtain, at the court's discretion, actual and legal damages of between $ 1,000 and $ 100,000 per domain name.

According to the Anti-Cybersquatting Consumer Protection Act (ACPA), a court should consider at least the below given factors in deciding whether the registrant had "bad faith".

See if the new name registrant has any trademark rights to it
Check if the new name registrant has any personal name rights to it.
Check if the registrant had another bona fide non-commercial or fair use of the domain name
Check if the new domain name registrant had any intention of diverting consumers from the original trademark holder’s site for any financial gain or disparage the trademark by creating confusion in the minds of consumer as to the source of site.
See if the registrant has offered to transfer, sell or assign the name without having used or intended to use the name or whether the registrant has a prior pattern of such conduct
Check if the new registrant has misleaded the registrar by any false contact information.

Like most, ACPA litigation can prove costly, but sometimes it's worth the cost with attorney fees and the fine you can win. In one similar case, one court has awarded a plaintiff $500,000.

That is $100,000 per domain name, to discourage a known cyber offender from further squatting and put him out of business.

The second way is through the dispute arbitration system of ICANN, which has arbitration organizations pre-approved.

In this arbitration, you will have to submit to one or more arbitrators a written argument stating why you should obtain the name under trademark or other law, and you may obtain transfer or non-use of the domain name.

Under the ICANN system, the arbitrator shall consider in making a finding of "bad faith," the following factors, similar to those used under the ACPA:

Any instances that show that the new name registrant acquired the domain name primarily with the intention of selling, leasing or otherwise transferring the domain name registration to the trademark holder or competitor of the holder.

See that the registrant registered the name in order to prevent the trademark holder from doing so, provided that such pattern of behaviour exists.

See that the domain name was primarily registered to disrupt a competitor's business.

See that by using the domain name, the registrant has intentionally tried to attract Internet users to a website or other similar online location for the purpose of commercial gain by creating a likelihood of confusion with the mark of the trademark holder as to the source, sponsorship, affiliation or endorsement of the website.

There are different types of intellectual property, each with its own legal method to protect it:

Patent Law: Protection of mental creations such as inventions, includes, zippers, drugs, Velcro, even the various Ronco devices that are sold on late night infomercials.

Copyright law: Concerns protection to creation of authors, artists, music, speeches, magazine, newspapers, films, plays, songs, art, software, websites and more.

Trade secret law: This law protects confidential business information such as formulations, recipes, manufacturing processes.

Trademark law: This law governs with protection of brand names, logos, sounds and things associated with products and services, for example the name “Epson “refers to a brand of printers and photocopiers.

Trademark law may also protect names under which a business is performed by a company or person.

Proctor & Gamble is a trade name associated with a particular business, and "Ivory" is a trademark of Proctor & Gamble as it is a brand name associated with a certain type of soap that the company manufactures and sells.

Chevrolet is both a trade name referring to the engine company and a trademark referring to it

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