Trademarks And Blogging: Is Your Blog Name Legal To Use?

As many of my long time readers know, I went through the legal nightmare of having to change blogs last fall due to a company claiming my blog name was a trademark infringement to them. Since that time, a lot of you have asked me privately what happened and wanted to know how to protect yourself. After sharing what I knew, a few people suggested I write a post about this, so I hope my experience helps some of you.

Please be aware I am NOT a lawyer nor have any legal experience. I'm just sharing what I've researched or others have told me. If you need real legal advice, please do not take my word as gospel. Contact an Intellectual Property Lawyer for any real legal matters involving trademark infringements.

For two years, I had a blog under the .blogspot.com umbrella and finally purchased my .com last summer. All was fine until late last August when I received an e-mail from a company informing me my blog name was a trademark infringement against them, and I had 30 days to let go of my domain.

I won't give them a bunch of views by naming them, but our names were not the same. Did they own the trademark to their name? Yes. Was my blog name the same as their company name? NO. Should I have had to change my blog? Not according to the 3 lawyers and blog designer I talked to.

It just so happened that part of their name was similar enough to my blog name that my blog ranked directly behind theirs in the search engine. They did not want traffic coming to me from people looking up their name, so they used bully tactics to scare me into giving my blog up. Trust me, it is scary to have a company make threats to sue you in a very short amount of time.

 

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Don't let this happen to you!

I see so many people who tell others to just pick a name, pay the $10, and buy their domain through blogger and all is fine.

There is a little more to it than that.

Is your blog name legal for your use? An intellectual property lawyer told me that Internet law is fairly new, so a lot of people don't understand it yet. As blogging gets more popular, she suspected there were many more of us who will eventually be threatened or forced to change our blog URL.

This means losing your google ranking, your alexa ranking, all your followers, possibly all the work you've done since you had your blog. Everything.....all wiped away due to trademark infringements you knew nothing about.

You may wonder......

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What exactly is trademark infringement anyway?

Basically trademark infringement is when you use a word, phrase, symbol or design that is registered by the trademark owner who has registered the word, phrase, symbol, or design with the U.S. Patent And Trademark Office.

Trademark infringement may include:

-Using the exact name that is trademarked.

- Confusing people into thinking your blog is owned by someone who owns a trademark.

 

- I believe (don't quote me on this one please) that you also cannot use a trademarked name in your own domain. For example, you can't have a blog about Disney characters and use "Disney" in your URL. You can have a blog called "cartoon characters" and talk about Disney characters as long as "cartoon characters" is not trademarked.

The lawyers I talked to told me these things are NOT considered trademark infringements according to trademark infringement laws:
 

- If someone does not own the trademark to a name, it is open for anyone to use.

- If you aren't in competition, it's probably not a trademark infringement. For example a Home/DIY/Lifestyle blogger who is basically doing this as a hobby is not competition to a business making money, especially if their company or website topic is different than yours.

 

- Having a different name than the trademark holder, even if it is similar. The intellectual property lawyer explained to me the number of "marks" or words trademarked is as essential as the name itself. My old blog had 3 "marks". The company who thought I infringed on their trademark only had one word "marked". The lawyer told me this would have possibly made all the difference if I did want to fight for my blog name.

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How can you protect your blog?

The most important thing I've found is to see if your blog name has been trademarked already. Go to TESS (Trademark Electronic Search System) Basic Word Mark Search and type the name of your blog.

Now try the .com of your blog name. Try leaving out the spaces in your name. Play around with similar names or spellings of your blog name. Do any of them show up as registered?

If so, then you may run the risk of having to change your blog at some point. The person/company owning the trademark would have to find your blog and contact you, so you'll be taking your chances. From what I understand, sometimes if your blog is not ranked high in the search engine, they won't bother with you. However, legally you still are in violation of using their trademarked name.

I've had several bloggers tell me they thought owning your own domain protects you. THIS IS NOT TRUE!

All buying a domain does means you own that space on the web. That is NOT the same as legally owning the trademark to the name.

 

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I did a search on google and someone else has the same blog/website name as me. Am I okay?

That depends. The key question is does anyone own the trademark to the name?

If someone else does, then you are legally not okay.

It doesn't matter who used the name first. What is important is who registered for the trademark first.

If nobody owns the trademark, then legally the same name can be used many times.

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I want to make sure nobody else uses my blog name. What do I need to do?

In that case, you need to buy the trademark. I would highly, highly recommend talking to an intellectual property lawyer before you do anything.

If your blog is very popular or you are making a good deal of money from your blog, then it might be in your best interest to trademark your name. Otherwise, someone else technically could buy the trademark to your blog name and have your blog shut down.

 

It does not matter who uses the name first, but who owns the trademark to the name first. Technically, you can have a blog for 5 years and someone can like your name and buy the trademark tomorrow, then threaten to sue you for trademark infringement against them.

For those who have smaller blogs, you will have to decide how important your blog name is to you and whether you care to start over (or quit) if needed.

 

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Someone claims I infringed on their trademark. What do I do?

 

Well, if you are me, you freak out, but I don't recommend it.

 

The first thing I would do is ask for their trademark number if they didn't provide it to you. Then go to TESS and look the number up. Is the trademark live (current)?

 

If it is, you will need to decide if you want to take the chance of them following through on the threat to report you to your domain host (and possibly have your blog closed) and possibly take you to court.

 

You might be better off just changing your blog URL.

 

As for me, even though I technically did not infringe on any trademarks to my (and 3 lawyers' knowledge) the fact is once you are threatened, the other party who owns the trademark can still legally go after you. Anyone can sue whether they have a legitimate case or not.

That is why I switched blogs.....for me, a small blog I did for fun was not worth the hassle of possibly getting in a legal battle and/or fighting with my domain host about my blog. It was easier for me just to change.

 

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Disclaimer

Again, I am NOT a lawyer and am merely a person who has battled this before. I'm sharing all I know here. If you have any questions or concerns, look for an intellectual property lawyer in your area. They will be able to answer all your questions much better than I can.

 

I hope this post helps you if you are ever faced with a trademark infringement threat. When I went through it, I found nothing, especially in the lifestyle niche I'm in, so my hope is this post will guide some of you if you ever go through the nightmare I did.

 

Linking to:

Little Birdie Told Me, DIY By Design Party, Tutorials, Tips, And Tidbits, Freedom Friday, Sunny Simple Sunday, Creative Bloggers Party, Lil Luna Party, Tutorials And Tips, The Scoop