INTRODUCTION
After the allocation of rights to a domain name by registering the name with a Registrar, you will get a letter from a company or its lawyer claimed the right to a trademark, claiming your registration violates their trademark rights and ask them surrender or transfer. Trademark owners are among the take your domain name you registered it away from youright?
Theft or STEALING only apply to property
The first thing to understand is that most people, including business talking about has a registered name if it is legal property. However, domain name law attributed the status of property to a registered name. The legal character of a name is a renewable form of permission or license the name to use for a specified period of time under a Registration Agreement .In contrast, by law, property is something that is owned, mortgaged, assigned or bequeathed under a will. Thus a domain name can not legally stolen.
Only one court has ever characterized a domain name as property. A registered name is like a phone number or car registration plates. You have the right or permission to use it you get a licensing body, but they never really belonged to you or are legally owned by you. Can not you have a business name or business name if they are not property, the legal status, but if your company name, company name or personal name is used as a trademark in commerce or trade and has a reputation in the market for goods or services, to obtain what is known as the common law trademark status.
There are instances where a domain name holder has accused a Domain> Name Registrar of negligence and that their domain name registration is fraudulent or stolen by a party that false papers with the Registrar. This occurred in the sex.com case in 1995, but the situation is not the focus of this article discusses whether a person who claims they have trademark rights in your domain name can take your name from you.
HOW domain namesALLOCATED
Domain names are allocated on a first come first served basis. In contrast, when an applicant files a trademark application applying for a registered grant of legal property. Property can be stolen or subject to theft, not a revocable license or permission. There are two ways an owner of the trademark can try to take away your domain name you often feel like stealing when you rob something you boughtand power have much time, energy and effort into choosing. Domain name law comprises a number of legal actions and administrative procedures to consider aspects of international brands, e-commerce and Internet law name dispute resolution domain .
1. Submitting a complaint UNDER ICAAN policy DISPUTE RESOLUTION
A person forced their legal rights to your registered name under the law can not onlyask you to give it to them. If you believe that the owner of the trademark has a good claim, the owner of the trademark must either sue you in a court of law to the name to restore or create the dispute heard by the Internet Corporation for assigned Names and Numbers (ICAAN) that the Uniform Dispute Resolution Policy (UDRP). The owner of the trademark to pay a filing fee of $ 1,500 the matter being heard before a panel or $ 4,000 for the matter to be decided by three to askPanel members.
A trademark owner can bring a court action which is called the tort of passing off, misleading and deceptive conduct, and be trademark infringement.
Alternatively, a trademark owner can file an online dispute under the UDRP created by ICANN. If you sign up for a registration, no one questions whether you are legally eligible to use the name. Most people looking for company records, trademark registries and other sources to see if their name canconflict with a brand that exists.
The UDRP is a policy that you agree as a condition of your registration of your domain name like when you buy and electronically sign a registration agreement. The agreement said to your knowledge, your registration does not infringe upon or violate the rights of any third party. It is your legal responsibility to ensure that when you register a name that you are violating the law. The UDRP Policy containsrules domain names to resolve disputes for most top-level generic, although some countries have their own Dispute Resolution Policy which varies slightly from the UDRP Rules. Therefore it is important to the relevant registration agreement to refer to familiarize yourself with the rules that your case is applied.
You also agree to submit to a mandatory arbitration proceedings referred by an approved or accredited Dispute Resolution Provider as adisagreement arises. A complaint can be filed online by an owner of the brand that says you their brand is using illegally and the dispute will be registered and sent to you via e-mail at the address in your whois information. It is important to your whois registration details on date.
The entire process takes place online, and no oral evidence is heard, unless there are exceptional circumstances. The controversy usually hear in the language of the RegistrationAgreement. Only written submissions from both parties are considered and a decision should be available within sixty days. There are no legal costs in this process nor the Respondent, the Complainant's legal fees, even if they lose the pay dispute. Registrants can represent themselves, hire a lawyer or a specialist. One of the parties, the decision of the arbitrator to appeal to a court within 10 days if dissatisfied with the decision.
Before an approved arbitrator to heardisputes under the UDRP Policy will cancel, suspend or transfer a domain name, the trademark owner must satisfy them of any of the following under the UDRP Rules: –
1. Owner of the trademark owned a trademark (whether registered or unregistered) identical or confusingly similar to the registered second level domain name;
2. The party who registered the domain name has no legalright or interest in the domain name, and
3. The domain name was registered and used in bad faith
These requirements are listed under para 4 of the Policy.
The owner of the trademark is either proof of a certificate of registration of the trademark to the Panel or evidence they have a common law trademark acquired through use of confusingly similar or identical to the name dispute. The Panel looks justby name on the left side of the.com or.net suffix in the evaluation of the names. Also, if the Respondent just added a generic word like "online" or a "geographical indicator" to an otherwise identical brand , addition will not prevent the domain name that this is evaluated as confusingly similar to the trademark.
If the owner of the trade show part one, the onus shifted to the holder of the name element two to prove. The UDRP Rules para 4(C) a list of criteria to determine whether the domain name holder has a legal right or interest in the domain based on the evidence, facts and the quality of the legal argument. For example, one of the factors or, for a notice of the dispute, they are preparing to use the name or services to sell goods in good faith. If the site has not been developed it may involve the submission of evidence of a businessplan.
Another factor is whether an individual, company or business entity, a registered is known by a name that matches the domain name. An alternative consideration is whether you are justified to use the name in a non commercial way for some other legitimate purpose. For example, some people are fan sites of their favorite sports star, celebrity to honor or to set up a review, parody site, or a political terrain that can be consideredfair use. An important factor may be whether the site was founded with the intent to profit from the trade by misleading consumers into thinking that there is a connection between you and the owner of the trademark or ruin their image.
The panel will review evidence to decide if you have both registered and used a name in bad faith in right field, which includes buying it with the intention of selling it back to an inflated price or the Trademarkowner or a third party. The panel looked at a previous patterns of behavior in your registration, or to use the domain name website address to deprive owner of the trademark to use the opportunity to make their mark in one, or deliberately removed their traffic to your site create confusion in consumers minds that you connected with the owner of the trademark.
It's hard to tell in detail how all the domain laws are appliedin practice, but you can get a better understanding of how the arbitrators apply the rules by reading both the Dispute Resolution Policy and the index of resolutions available on the Internet at the World Intellectual Property Disputes (WIPO) website . This will help you formulate your factual and legal arguments. As a respondent you should file your response within 20 days after the commencement of the administrative process, otherwise you are in default and the case will be heard basedonly on the complainant's submissions ..
The process as a faster, cheaper and more informal than going to the Court and the panelists are experts in domain name law, trademark, internet law and e-commerce.
But it is still open to the Respondent Court action brings the right domain name dispute resolution.
2. Bring a lawsuit in the Courts
Most decisions in the courts hearing involved in the causes ofact as trademark infringement, trademark infringement or unregistered, otherwise known as the tort of passing off, often accompanied by an action for violation of Trade Practices Act in Australia or unfair competition law in the United States.
America has enacted legislation specifically kuberreg called the Anti-cybersquatting Consumer Protection Act 1999 Law that allows a dispute to bring in U.S. courts against an alien under certain circumstances. It wasdesigned with the intent to prevent people from registering, trafficking in or using a name confusingly similar to, or dilutes the trademark owner's mark or name.
Take action in any court of jurisdiction in a U.S. court or court of another country can be satisfied involves delay, expense and uncertainty when it comes to enforcing judge.
However, some trademark owners to bring claims court if any remedies available outside of the cancellation ortransfer of the domain name, such as damage and under exceptional circumstances attorney's fees.
CONCLUSION
While trademark owners sometimes try to steal your name from you, it's not the way the law is characteristic for the rights of the owner of the trademark when they bring a dispute in the courts or the administrative process online. Whether they succeed in your name you will depend on all the facts andcircumstances and the way you argue your case.
