Are there legal trademark issues with using a brand name in a url
May 3, 2009 8:23 PM Subscribe
Are there trademark issues with using a brand name in a url? I've been doing a bunch of research on Arbonne and would like to start a blog somewhere like thetruthaboutarbonne.blogspot.com or something like that. Are there any legal issues involved?
This link you might find interesting. Owner of goldmansachs666.com got a C&D from Goldman, said "piss off" and sued them back and now it looks like Goldman is walking away. A vote for "no, as long as it's not commercial".
As the lawyer in the link says "Ain't nobody going to type GoldmanSachs 666 to to get to Goldman Sachs' Web site,"
posted by H. Roark at 8:49 PM on May 3, 2009
As the lawyer in the link says "Ain't nobody going to type GoldmanSachs 666 to to get to Goldman Sachs' Web site,"
posted by H. Roark at 8:49 PM on May 3, 2009
On the other hand, being sued is a pain. You might well win any case brought against you, but do you want to have to defend it? Nobody's going to find your blog by randomly searching for "the truth about Arbonne"; why not call it something like thedevilsenterpise.blogspot.com and confine your use of the name to descriptive text: "The Devil's Enterprise blog, bringing you the truth about Arbonne!" That way they have one less pretext to sue you.
posted by Joe in Australia at 10:04 PM on May 3, 2009
posted by Joe in Australia at 10:04 PM on May 3, 2009
IANAL, this is not legal advice, etc.
If you were to actually register a domain, the law buzzword to research (if you and/or site are US-based) would be "cybersquatting" -- you'd want to look at the ACPA (15 USC 1125(d)), the rest of the trademark law, the UDRP, any other policy your domain name registrar might have, terms of service for your web hosting provider, and probably a couple other things I've missed.
Since you seem to be talking about just getting a subdomain, you can forget ACPA/UDRP: the general trademark law, Blogger terms of service, and the other sets of terms it references will probably be more relevant to you. Beware defamation law, too.
Even if you research all these things, if you post something someone doesn't like, you might get a nasty legal-sounding letter (or a lawsuit) even if you're completely in the right. Don't let this discourage you; just be aware that the answer to "can someone sue me?" is almost always (at least technically) yes.
posted by deeaytch at 10:11 PM on May 3, 2009
If you were to actually register a domain, the law buzzword to research (if you and/or site are US-based) would be "cybersquatting" -- you'd want to look at the ACPA (15 USC 1125(d)), the rest of the trademark law, the UDRP, any other policy your domain name registrar might have, terms of service for your web hosting provider, and probably a couple other things I've missed.
Since you seem to be talking about just getting a subdomain, you can forget ACPA/UDRP: the general trademark law, Blogger terms of service, and the other sets of terms it references will probably be more relevant to you. Beware defamation law, too.
Even if you research all these things, if you post something someone doesn't like, you might get a nasty legal-sounding letter (or a lawsuit) even if you're completely in the right. Don't let this discourage you; just be aware that the answer to "can someone sue me?" is almost always (at least technically) yes.
posted by deeaytch at 10:11 PM on May 3, 2009
Self-link: here's the cease and desist I got from Scientology's lawyer over my truthaboutscientology.com website, along with my answer to them and a bunch of links to the bits of the law I believe support my use of that trademarked name in my website.
I am totally not a lawyer, but the law seems pretty clear that you have the right to discuss trademarks when reporting on the organizations that own them. While trademark law has come to be seen much more as something to benefit companies, my understanding is that trademark law was originally intended to protect consumers - to make sure that, when you bought a Zenith TV, you got a TV made by Zenith, not by Bob's Cheapo Electronics. So to stay on the right side of Using a Trademark in the Course of Public Reporting, it's important to make sure visitors to your site won't think you're actually an official Arbonne site. If you're criticizing Arbonne and the site makes that pretty clear, that helps your case.
Also, if your blog's not commercial, that may help your case a lot.
Be prepared for a cease and desist. What will you do if you get one? In my case, I was able to respond to a notoriously litigious entity with a simple letter, and 8 years later (wow ... has it really been 8 years?), the site's still there. YMMV, but as an enthusiastic proponent of free speech, I encourage you to do what you think will best serve the site.
posted by kristi at 11:05 PM on May 3, 2009 [1 favorite]
I am totally not a lawyer, but the law seems pretty clear that you have the right to discuss trademarks when reporting on the organizations that own them. While trademark law has come to be seen much more as something to benefit companies, my understanding is that trademark law was originally intended to protect consumers - to make sure that, when you bought a Zenith TV, you got a TV made by Zenith, not by Bob's Cheapo Electronics. So to stay on the right side of Using a Trademark in the Course of Public Reporting, it's important to make sure visitors to your site won't think you're actually an official Arbonne site. If you're criticizing Arbonne and the site makes that pretty clear, that helps your case.
Also, if your blog's not commercial, that may help your case a lot.
Be prepared for a cease and desist. What will you do if you get one? In my case, I was able to respond to a notoriously litigious entity with a simple letter, and 8 years later (wow ... has it really been 8 years?), the site's still there. YMMV, but as an enthusiastic proponent of free speech, I encourage you to do what you think will best serve the site.
posted by kristi at 11:05 PM on May 3, 2009 [1 favorite]
Oh yeah, one more thing: trademark law requires trademark holders to protect their trademarks, which means that lawyers and trademark holders may feel that they MUST send cease-and-desists to anyone else who uses the trademark in order not to lose their right to it. (There's a little bit about this, though not much, at Wikipedia's Trademark article.) So one way to think of the C&D, if it comes, is this: "Right, they think they HAVE to send this to me, so now I respond by pointing out how my use is covered under the Lanham Act, and that'll hopefully be the end of that."
If they send a C&D, it may be more for the purpose of showing they were maintaining and protecting the mark and less about trying to actually make you give up the URL.
posted by kristi at 11:13 PM on May 3, 2009
If they send a C&D, it may be more for the purpose of showing they were maintaining and protecting the mark and less about trying to actually make you give up the URL.
posted by kristi at 11:13 PM on May 3, 2009
A subdomain is as protected as your relationship with your domain provider dictates. I believe a C&D would result in Blogspot/Google pulling your blog in about five minutes. On the other hand, they might not actually care about a blog enough to C&D it in the first place. Your call.
posted by dhartung at 11:38 PM on May 3, 2009
posted by dhartung at 11:38 PM on May 3, 2009
IANAL yada yada yada...
but I used to build websites for real estate agents, and the occasional agent would try to use the word "Realtor" in their URL. This would last about two days before a C&D was sent from the folks at realtor.com.
So I know that companies have gone after folks using trademarked names in URLs, but whether this company will do such a thing is the unknown.
posted by nitsuj at 5:44 AM on May 4, 2009
but I used to build websites for real estate agents, and the occasional agent would try to use the word "Realtor" in their URL. This would last about two days before a C&D was sent from the folks at realtor.com.
So I know that companies have gone after folks using trademarked names in URLs, but whether this company will do such a thing is the unknown.
posted by nitsuj at 5:44 AM on May 4, 2009
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Trademark law applies in both traditional and surprising ways to things like URLS, meta tags, etc. If you're going to be using something that's trademarked as the focus of your website, make sure you fall within one of the well-defined exceptions: trademark law doesn't have "fair use" in the sense that copyright law does, but nominative or descriptive uses are usually OK. Read the federal statutes carefully, be on guard for state unfair competition problems (unlikely, I think), and as always there's no substitute for getting a written analysis from an experienced trademark attorney.
posted by Inspector.Gadget at 8:30 PM on May 3, 2009