Is a domain name subject to copyright law?

Is a web address (a domain name) subject to copyright law?

No, for a variety of reasons web addresses (also known as a domain names or URLs) aren’t protected by copyright.

Even though copyright doesn’t protect domain names, that doesn’t mean domain names are entirely unprotected. Trademark law protects web addresses. And for a variety of reasons, companies are often more apt to go after individual instances of trademark infringement than individual copyright infringers.

There are too many differences between copyright and trademark laws to properly discuss them here. However, it’s worth noting one of the major differences between trademark and copyright law. You can make a strong claim of trademark infringement if you can prove the following three things:  (1) someone registered a domain name with your trademarked name in it, (2) she registered it with the sole purpose of attracting visitors using your trademarked name, and (3) she had no legitimate purpose to own the domain except for taking advantage of the popular name.

All sorts of names and designs can be trademarks. As soon as someone begins to associate a word or phrase or logo with a product or service, it can be considered a trademark. Common examples of trademarks are the words McDonald’s, Nike, and Budweiser. When someone sees a bag with McDonald’s name and logo on it, that person expects food from McDonalds to be inside. Similarly, if someone goes to McDonalds.com, that person may naturally expect to be going to a website owned and managed by McDonald’s.

If you were to register McDonalds.com as a place to sell your own frozen hamburgers (and you didn’t have a very good reason for choosing that domain) you would be infringing McDonald’s trademark and they could take legal action against you to confiscate that domain from you. Even if you had a very good reason, they could still take it from you under the theory of trademark dilution.

A name doesn’t have to be famous to be a trademark, all someone has to do is use a sufficiently unique name “in commerce.” “In commerce” is a complicated term that can really refer to almost any use for promotional or moneymaking purposes. In fact, someone doesn’t even have to make money to use a mark in commerce.

Long story short, if you use someone else’s trademark whether it’s famous or almost totally unknown in your domain name to confuse people into coming to your site, or with the intention of selling it later on to the person you who uses the name, then you may be guilty of cybersquatting or subject to a UDRP action.

Keep in mind, though, if you register a domain containing a trademark but are using it for a non-commercial purpose like parody or criticism, then you are free to use that trademark. People can refer to trademarks rather freely in their creative work because of the doctrines of fair use and nominal use.

That said, even if you had one of these very good explanations for registering the domain that you did (called “good faith”), some brands may still take issue at your use and send a cease-and-desist letter to force you to stop using your domain regardless of whether you actually objectively broke the law. Unfortunately, these companies try to use the force of their legal departments to unfairly limit peoples’ ability to speak freely.

Trademark law and cybersquatting are complicated issues and best discussed on a case-by-case basis. If someone has stolen your domain name, someone has accused you of misusing their trademark in your domain name, or you’re unsure whether or not you’re cybersquatting, feel free to contact New Media Rights at (619) 591-8870 or support@newmediarights.org for free, pro bono legal assistance.

 

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