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Robert McEwen, Esq.
Robert McEwen, Esq., Lawyer
Category: Intellectual Property Law
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Experience:  Licensed Texas General Practice Attorney
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If I trademark a domain name such as "freeinfo.com, would someone

Resolved Question:

If I trademark a domain name such as "freeinfo.com, would someone who registers freeinfo.org be infringing on my trademark?

Thank you,
Al
XXX@XXXXXX.XXX
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Robert McEwen, Esq. replied 1 year ago.

Robert McEwen, Esq. :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

Robert McEwen, Esq. :

Not necessarily. Having a domain name is XXXXX XXXXX same as having a trademark. Now if you had a registered trademark for "Free Info" or "FreeInfo.com" and there was a "likelihood of confusion" between your two sites in the minds of a normal consumer, then there could be infringement.

Robert McEwen, Esq. :

Now it's more likely that this could run afoul of the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d). Under the ACPA, a trademark owner may bring a cause of action against a domain name registrant who (1) has a bad faith intent to profit from the mark and (2) registers, traffics in, or uses a domain name that is (a) identical or confusingly similar to a distinctive mark, (b) identical or confusingly similar to or dilutive of a famous mark, or (c) is a trademark protected by 18 U.S.C. § 706 (marks involving the Red Cross) or 36 U.S.C. § 220506 (marks relating to the “Olympics”).

Robert McEwen, Esq. :

Note that in that it doesn't have to be trademarked, but does have to be famous. Furthermore, it has to be distinct. I don't see how "free info" could be seen as distinct, although in certain instances it could be.

Robert McEwen, Esq. :

But as to trademark infringement, assuming that you have a registered Federal trademark (which would allow you to sue), the analysis is going to be based on "likelihood of confusion". In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark. The plaintiff then must show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff. To analyze whether a particular situation has developed the requisite "likelihood of confusion," courts have generally looked at the following eight factors:



  1. the similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);

  2. the similarities of the goods and services involved (including an examination of the marketing channels for the goods);

  3. the strength of the plaintiff's mark;

  4. any evidence of actual confusion by consumers;

  5. the intent of the defendant in adopting its mark;

  6. the physical proximity of the goods in the retail marketplace;

  7. the degree of care likely to be exercised by the consumer; and

  8. the likelihood of expansion of the product lines.

Robert McEwen, Esq. :

Based upon my experience, someone registering a common phrase that is not protected by Federal registered trademark would probably not be infringing on anyone elses trademark. It has to be much more specific, and registered as a trademark with the US Patent and Trademark Office (USPTO).

Robert McEwen, Esq. :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate this answer either a 3, 4, or 5 (good or better). Please note that I do not get any credit for this answer unless and until you rate it that way. Thank you, XXXXX XXXXX good luck to you!

Robert McEwen, Esq. :

Did you have any other questions before you rate this answer?

Robert McEwen, Esq. :

Are you there? Please note that I am still here, awaiting your response or rating... Please note that this question remains open until you rate it, and I don't get any credit for the time or effort unless and until you rate it as good or better...

Robert McEwen, Esq. :

My apologies, but I must assist the other customers that are waiting. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better) AND press the "submit" button, if applicable. If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

Robert McEwen, Esq., Lawyer
Satisfied Customers: 12217
Experience: Licensed Texas General Practice Attorney
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Robert McEwen, Esq.
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