If you’re just getting started in freelance writing, you may be staring down one of the most important decisions you’ll make in your career, namely what your business name should be and, thus, what your domain name should be.
Picking a good domain isn’t easy and anyone who has done it recently can tell you what a brain-racking experience it can be. One has to come up with a domain that’s not taken, is short, easy to spell, catchy, explains the desired company and has good SEO.
However, to that myriad of very real concerns, another one must be added: Trademark.
In short, in addition to trying to find a domain in a very crowded field, you have to ensure that your domain doesn’t infringe on someone’s business name or mark, something else that is no easy matter. This is what makes it imperative to search your domains thoroughly before buying and, when you do find one that’s good, you need to take additional steps to protect it.
Domains are a minefield and, if you aren’t prepared for it, you can find yourself either in a world of legal trouble or, perhaps just as bad, having your rights infringed upon by others.
A Primer on Trademark
In order to understand the legal issues with domain names, one first has to understand at least a little bit about trademark.
Like copyright, trademark is an intellectual property, meaning that it is a limited monopoly over an intellectual creation. However, unlike copyright, trademark protects names, slogans, logos and other elements used to identify a business that don’t qualify for copyright because they are too short or lack the requisite level of creativity.
But where trademark can be more broad in terms of what it covers, protecting things copyright can not, it is much more limited in the protections it provides. Trademark is designed solely to prevent confusion in the marketplace. One doesn’t violate a trademark by simply copying the trademarked term, phrase, etc., but rather, by using it in a manner that causes confusion.
For example, simply mentioning Walmart, one of the most famous trademarked names, doesn’t violate the company’s mark. However, if you claimed to be operating an official blog or selling products with their name without permission, it would be as you are indicating a relationship with the company that doesn’t exist.
Likewise, if you created a new business called WallMart that was very similar in nature, it would likely be deemed an infringement as it is too similar and confusing.
Bear in mind though that this protection is very limited, specifically, it is confined to the marketplace for the trademark holder. Delta is both an airline and a faucet company, but those two have no trademark issue as they are in very different markets. Likewise, Apple Music and Apple Computers had only a minor issue, that is, until Apple Computers entered the music market.
The reason all of this impacts domains so greatly is because domains are, almost by their very nature, protected by trademark. They are short phrases used to identify a business (in more way than one) and don’t qualify for copyright protection (at least the vast majority of the time).
This means that, not only can your domain infringe on another’s mark, but you can have your domain infringed as well. As a freelance writer, and thus business owner, this is something you have to watch out for very carefully when getting started.
How Not to Infringe
Not infringing trademark with your domain is actually fairly simple, all you need to do is, when registering a domain, ask yourself three simple questions:
- Is There Another Business Name Similar to Mine? Try to find other businesses with a name simiar to yours, if you can’t find any, you can stop here.
- Are Our Businesses in the Same or Similar Market? Remember that a market is not just the business you are in, but also can be separated by geography if you only serve a specific region. Usually though, it’s better to err on the side of caution.
- If So, Could My Name Be Confusing? Finally, if there is a business with a similar name and a similar market, would others, either consumers or the other company, believe that your name is confusing or a deliberate attempt to exploit their reputation?
On matters of trademark, its usually better to be safe than sorry. Even if there is no actual infringement, having a name too close to a potential competitor just creates confusion and makes life much more difficult for both of you. It’s best to be as original as you can be, regardless of what the law actually says.
In short, it may be best to not bother with debating the law, just try to find a name that is uniquely you and has no possibility of being considered a trademark infringement.
How to Protect Your Domain
The flip side of the coin, however, is much more difficult. Many don’t see the benefit of being an original, especially when they aren’t trying to open a full business and, instead, are just trying to siphon off your traffic and reputation, such as with spammers and domain squatters.
This is similar to what happened to this site in 2008.
Fortunately, there are steps that you can take to protect yourself. However, your best protection is the steps you take before you set up your site, namely purchasing all domains that are related to yours including any additional extensions, common misspellings and so forth. Though it might be expensive, most domain registrars offer package deals to keep costs down and spending a few hundred dollars can save you a lot of money down the road.
That’s because if someone does open up a domain similar to yours, the process for getting it revoked is the Uniform Domain-Name Dispute-Resolution Policy (UDRP), which can cost well over $1,000 even in simple cases and that’s before you tack on any legal or other fees you accrue over the process.
The UDRP is basically an arbitration system provided by the Internet Corporation For Assigned Names and Numbers (ICANN) to handle trademark and other disputes over domain names. The process, in cases of clear trademark infringement, usually results in the revocation of the infringing domain, but is expensive, time-consuming and difficult.
In short, you are much better off getting the domains to start with rather than having to clean up infringements later.
If there’s interest in the future, we’ll revisit these topics in more detail later, including how to monitor your domain for potential infringement and how to perform trademark searches to ensure you don’t accidentally infringe another person’s mark.
However, it is more important that we have a basic understanding of how trademark works and how it affects domains, which is what I hope this provides.
In the end though, the onus is on you, as the buyer of the domain, to both protect your investment and ensure that your registration doesn’t infringe. If you can be savvy about those two things, you’ll likely be fine when dealing with domains and, fortunately, neither is particularly difficult.
Still, one does have to be aware of the potential issues and, hopefully, now you are.
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for Freelance Writing Jobs). This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.