Named Technology, but no trademark

**slobizman** · 06-25-2006, 10:29 PM

What is the deal with having a domain name that is the same as a technology someone has developed, yet they never trademarked it?

For example, let's say Hard drive maker Western Digital creates "SpinFast" technology they put into their drives. But, they never trademarked it. If own own SpinFast.com is that a problem?

**Zona** · 06-25-2006, 11:30 PM

I am not an attorney but it is my understanding that the first user of a "term" has some rights even if they do not go through the formal trademark procedure. There are some protections provided by "first use."

You might also want to see if the term has been trademarked in another country. There may also be international trademark issues to consider.

There are attorney's on this board that can provide better insight.

**slobizman** · 06-26-2006, 01:03 AM

For the sake of this discussion, let's assume first use does apply. Consider this scenario then:

1. Individual buys domain name in year 1. Parks it.
2. A company starts usnig the term in its business (no trademark) in year 2.
3. In year 3, the domain is sold to a new holder who parks it.

Do the first use rights of the original domain buyer inure to the person he sold it to in year 3? Or does the company using it in Year 2, trump the new buyer in year 3?

**DNQuest.com** · 06-26-2006, 12:57 PM

Originally Posted by slobizman

For the sake of this discussion, let's assume first use does apply. Consider this scenario then:

1. Individual buys domain name in year 1. Parks it.
2. A company starts usnig the term in its business (no trademark) in year 2.
3. In year 3, the domain is sold to a new holder who parks it.

Do the first use rights of the original domain buyer inure to the person he sold it to in year 3? Or does the company using it in Year 2, trump the new buyer in year 3?

There have been cases where if someone buys a domain, it is considered a new registration. Since there was only a parking page on the domain, there is no goodwill associated with the domain (as opposed to buying an established active site and buying the "goodwill" associated with the site and keeping it as an active site.).

As far as TMs, they could establish common law TMs which is very possible they would have. (then again, they would try to prove that you only registered it to make money off of their product/service)