Rights of domain name can be linked directly to trademark rights

The old rule that registration of the domain name is on a first come, first served contains one very important exception. This exception was created by laws Anticybersquatting as the Lanham Act Anticybersquatting Consumer Protection Act (ACPA). In addition, ICANN has propagated the policy and rules that are under the UDRP domain name cybersquatting challenged registration, whether particular items are met. Almost every day, I receive a call from a potential customer with the question: "They're squatting on?". My typical response is that it depends, and this response is not intended to increase the likelihood of client sign-up or to generate taxes but it really depends on the facts and circumstances. The determination of rights in a domain name requires an analysis based on trademark law.

The first question to address is the scope of trade mark rights, if any. An entity that uses a badge in interstate commerce has the right to use the mark in connection with particular goods or services covered. This entity would have had trademark rights. Therefore, to identify whether trademark rights exist at all is fundamental to any analysis of cybersquatting. In fact, the first item under the ACPA and UDRP Policy requires the trademark rights. These rights trademarks should not necessarily based on a trademark registration with a government agency like the United States Patent and Trademark Office, but may be based on a previous use of a distinctive brand and not generic or merely descriptive, interstate trade. This determination in itself is an extremely fact-dependent, and is particularly less clear when it comes to descriptive marks, which are only entitled to protection if they have reached acquired distinctiveness through secondary meaning. In determining whether a mark has become distinctive, one must look at when the first use of the mark occurred, how long the mark has been used, the extent to which the mark has been advertised and marketed, to what extent the Consumers have begun to recognize the entity as the origin of the goods or services associated with such trademark and related matters. Assuming you can establish trademark rights before registering the domain name, you may be able to claim rights cybersquatting.

That said, depending on the strength of the mark, as the current registrant uses the domain, and other facts can provide additional support for a cybersquatting complaint. In addition, in cases where the cause of action for cybersquatting is not at all certain, there may be elements worth exploit the use that may cause the apparent cybersquatter no longer wish to maintain the domain name. For example, searches for the owner of the domain name on the notice of claim to the trademark owner's rights in the domain by giving notice to the holder of the domain name of an explicit obligation to make any potential buyer aware of that may cause the owner of the name domain to transfer the absolute rule, consider negotiating a transfer payment, or lead to other information that will be useful to assess what further steps are needed.

Ultimately, unless the conversion of hacking or domain name, trademark rights are a necessary prerequisite for any claim cybersquatting. Therefore, employers are well served to ensure proper establishment of a mark, the use of a trademark, the trademark registration, trademark monitoring and enforcement of a trademark in order to be in better position if a problem Domain Name arise. I've said it before and I'll say it again, trademark rights away, you do not have a cause of action for cybersquatting. That said, do not overlook the fact that trademark rights exist under common law, as well as registration with a government agency, and a trademark attorney can help you identify what rights you have and until point it may be able to enforce them, in an action cybersquatting .......