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Domain Names and Trademarks

Written by: Peter Macrae Dillon

Article Overview: This article is a primer on how to distinguish domain names from trademarks, and vice-versa, and whether and when a particular word may properly be used for an Internet domain name registration.

Domain Names and Trademarks

There has been a fair amount of conflict regarding reservation by certain individuals of domain names that are registered trademarks of another person. A domain name is the “address” employed by an Internet user to receive communications on the Internet.

Is a domain name a trademark? A trademark is defined as being a mark that is used to distinguish wares or services of one individual from the wares or services of others. Where a domain name serves the purpose only of an Internet address, it may be that such a name would not constitute a trademark. Domain names are distributed on a first-come, first-served basis. This creates problems where there are two or more owners of an identical trademark. Identical marks are permitted where there is no likelihood of confusion between them (where for instance, the marks are used in different channels of commerce). The use by someone of a word that happens to be a registered trademark probably does not constitute a trademark infringement unless that person is using the domain name to sell competing goods. This fact may create a market by which domain names can be bought and sold by those interested in a particular designation.

More information. For more information on franchising in Canada, the United States and internationally, please contact Peter Macrae Dillon, head of Siskinds Franchise Law Group. Peter is the author of the annotated Ontario Franchise Disclosure Act and the annotated Alberta Franchises Act and over 30 other publications on the subjects of franchising, licensing and distribution. He is licensed in Ontario and New York. Peter can be contacted at 800-816-9596 ext. 389 or by email at peter.dillon@siskinds.com. The information contained in this note is for general reference only, and should not be relied upon as constituting legal advice.

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