The quick and easy answer to this question is that domain names are not intellectual property.
In this post, we’ll expand a little more on what domain names are, why they are not considered intellectual property, and what you can do to protect your brand from someone using it in a domain name.
Let’s start with the basics: what is a domain name?
The simplest way in which this can be explained is to think of them in the context of a street address. For example, every website has an Internet Protocol address, commonly called an IP address, which points users to the website’s location, but an IP address is just a mixture of numbers which is not at all easy to remember, much like GPS coordinates. A domain name puts an IP address into words, hence the simplest way to think about a domain name is like a street address.
So now that we understand what a domain name is, why is it not intellectual property?
Let’s say you have a brand (for example, “Briffa”), which you have registered as a trade mark. Why does the registration of this brand as a trade mark not automatically extend to domain names, preventing others from using your brand in their domain name?
The answer is that a domain name on its own does not attach to any tangible object. It is, in essence, a string of characters directing a user to a particular area on a web server, which may or may not contain further information. Copyright will still protect the content of your website.
However, just because your brand is not afforded automatic protections under copyright for use in a domain name, does not mean that domain names are entirely unprotected. In order to bring a trade mark infringement claim you need to be able to demonstrate three key points:
You may be thinking that this only protects famous brands, but that’s not necessarily the case. As long as you can show your brand to be sufficiently unique and used for commercial purposes then you can still apply the above.
The only thing to keep in mind is if the domain name with your mark is being used for non-commercial purposes. If so, then they will be free to continue using under the protection of fair dealing.
In short, if someone is using your mark in their domain name to confuse people into visiting their site, or with the intention of selling it to you at a later date then the chances are you will be able to protect your mark either by enforcing your trade mark rights or by bringing a cybersquatting action. But that’s a topic for another time.
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