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Pete
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Posted: Sun Dec 07, 2003 5:57 pm
Post subject: Trademarks and domain names
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Hi,
I'm new to all this, and have had a few ideas, but not sure if I am allowed to use them.
1 Idea I had was to register a domain name close to that of a merchant and have affliate links to that on there, almost as if the my site was that of the merchant. For example, could I set up a site with a domain name, say Walmarts.com. Then set my site using their banners, so it appears as if it is their site. Therefore any click through would be counted as my customer.
Is this allowed? |
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Debs
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Posted: Sun Dec 07, 2003 6:38 pm
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Absolutely not, that is trademark infringement and asking for huge trouble. Most affiliate programs specifically exclude your ability to do that. You would lose the domain and any earnings you had once someone like Wal-Mart came upon you.
Debs
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Charlie
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Posted: Sun Dec 07, 2003 6:49 pm
Post subject: Re: Trademarks and domain names
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Hello Pete.
| Pete wrote: | | Is this allowed? |
Very dodgy indeed.
The only times I'd suggest it appropriate is in the case of a redirect for an affiliate program...
Some people register a very similar domain name to the merchant and then use this domain in any links to redirect to the merchant. The theory is that it looks more like a direct link, and less like an affiliate (and might help clickthroughs). Even then, some programs frown upon it, so it's always best to ask first.
Hope this helps,
Charlie.
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- Groucho Marx |
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Pete
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Posted: Sun Dec 07, 2003 7:22 pm
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Charlie,
That was kinda what I thought.
It just seems to simple to be allowed to register a domain name close to the affliate partner.
But then to play devils advocate, their agreements usually say something like you should include their banner on your site. They have no say in how your site is designed (ie. colours and that sort of stuff). If you were advertising to your site to bring sales solely to them, it isn't exactly taking anything from them (provided that you do not diminish their brand name - but that's not allowed regardless of what your site looks like).
It also begs the question of what degree of simarily can your site and the merchant site have? And what is stopping you registering the similar domain name and putting links to another competitor (in our example, another supermarket). In our example, wouldn't this be worse for the Walmat than directing to their site?
Don't companies review your site before accepting you as an affiliate anyway? |
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Debs
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Posted: Sun Dec 07, 2003 8:11 pm
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Some review and some don't. But in the US merchants are very guarded about their trademark, and the use or abuse of it by anyone. Even celebrity name domains are being taken left and right by the celebrities from individuals who either had fan sites or were looking to cash in on the name of the celebrity.
One of the tests used by the US Courts in determining infringement is "confusion." Does the name create any manner of potential confusion as to the use and ownership? In the case of domain names, you would find the US Courts have held that it is infringement because the consumers are confused in thinking they are on the merchants site, when, in fact, they are not.
Debs
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Pete
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Posted: Sun Dec 07, 2003 8:32 pm
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Cheers for the advice. I think I would only attempt it if I set it up in a limited liability company - if not you are left open to possible litigation.
As a discussion point though, could I set up Walmarts.com and advertise, say for example Tesco, or some other supermarket? That way the website visitor would not be confused into thinking the site was a Walmart site. |
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Debs
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Posted: Sun Dec 07, 2003 9:35 pm
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I think you would still end up with brand confusion. When it comes to a trademarked name, particularly one that is not a "real" word, as in Wal-Mart, Walmart, Walmarts, etc. the brand is ever important and easier to prove than if they had been called "Walls Shopping Mart" and had the domain walls.com ... then you could argue that the domain wallsplace.com or wallshopmart.com or wallsmart.com isn't infringement.
BTW, I did a little checking and found that quite a few merchants are now restricting use of their trademark in the url, not just the domain, so that could create problems with pages named with their trademark too.
Debs
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AllanGardyne
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Posted: Mon Dec 08, 2003 7:40 am
Post subject: Re: Trademarks and domain names
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| Pete wrote: | Idea I had was to register a domain name close to that of a merchant and have affliate links to that on there, almost as if the my site was that of the merchant. For example, could I set up a site with a domain name, say Walmarts.com. Then set my site using their banners, so it appears as if it is their site. Therefore any click through would be counted as my customer.
Is this allowed? |
That sounds dodgy. However, perhaps you can modify your idea and still use it. For example, I've seen a site which uses a layout and colors that are very similar to the design of the merchant site - and it's done WITH the approval of the merchant.
It means the affiliate clicks from the affiliate site to the merchant site and it's a smooth switch from one to the other - not noticeable or barely noticeable.
Big company merchants are unlikely to allow this. They don't want to dilute their brand. Some smaller companies are more flexible in their thinking, especially if the affiliate can persuade them that they know what they're doing. It doesn't hurt to ask.
Good luck!
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Allan Gardyne
AssociatePrograms.com - You're here. Explore it! |
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Charlie
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Posted: Mon Dec 08, 2003 12:44 pm
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Pete,
Limited liability or otherwise, I'd not proceed against the wishes of the merchant. But by all means ask, whatever they say in their agreement. Often people are much more flexible than their legal documents suggest, once you tell them what you are planning.
As Allan says, though, this applies more to one-man-bands than corporations. That's the problem I have with many corporations - lack of access to the decision-maker.
Hope this helps,
Charlie.
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Pete
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Posted: Tue Dec 09, 2003 6:01 pm
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Cheers guys for your input.
I think I'll concentrate on getting my website together first (not one with a domain name close to a merchant), then one I've got that up and running, I'll think about other ideas (such as the one discussed) and how to obtain permission.
I actually only got the idea from a merchant selling pills when I had a go at creating a website advertising pharmacies. Basically it was a first attempt, and wasn't too great, done a on free site, on a subject I wasn't particularly interested in, so I scrapped it. But one of the merchants actively encouraged it affiliates to use offline activities and provided copies of leaflets to use with the merchant's website plastered all over it and the affiliates code in the URL. It made me think that maybe I could use a strong merchant's brand to do a similar thing. But all things considered, probably best to develop my new website idea and then think about market and advertising later.
Thanks again
Pete |
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Serge
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Posted: Tue Dec 09, 2003 6:24 pm
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To maturity the subject, I have another question for all of you.
If I register a site with the name which includes a name of a brand name manufacturer such as MS (for Microsoft), HP (for Hewlett-Packad), etc... Would it be a violation?
Thanks,
Serge |
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Charlie
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Posted: Tue Dec 09, 2003 8:47 pm
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| Pete wrote: | | I think I'll concentrate on getting my website together first (not one with a domain name close to a merchant), then one I've got that up and running, I'll think about other ideas (such as the one discussed) and how to obtain permission. |
Although it's a good idea to plan the concept before you choose a domain name, I wouldn't recommend changing domain name at a later date, if that's what you are suggesting.
I'd definitely finalise your choice of domain name before you start hosting, since changing domain can put you back to square one with the SEs if you are not careful.
| Quote: | | But one of the merchants actively encouraged it affiliates to use offline activities and provided copies of leaflets to use with the merchant's website plastered all over it and the affiliates code in the URL. It made me think that maybe I could use a strong merchant's brand to do a similar thing. |
Using branded materials the merchant provides you as an affiliate is very different from using a trademark in your domain.
| Quote: | | But all things considered, probably best to develop my new website idea and then think about market and advertising later. |
I think the two have to work hand in hand from the start. If there isn't a market for your site, who are you going to sell to?
Create for the market if you want to hit the ground running.
| Serge wrote: | | If I register a site with the name which includes a name of a brand name manufacturer such as MS (for Microsoft), HP (for Hewlett-Packad), etc... Would it be a violation? |
Sorry, I don't know. But it wouldn't surprise me.
All the best,
Charlie.
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Debs
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Posted: Fri Dec 12, 2003 4:47 am
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One of the newsletters I have been subscribed to for years is from NetMechanic. This latest issue had a great article on copyright/trademark issues and domain names:
http://www.netmechanic.com/news/vol6/beginner_no20.htm
Debs
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