Domain Names, Artwork and Slogans        

Creating a website is something many authors do and something I highly recommend for marketing.  With luck, a lot of people will go to see that site.  Before you pay the money or put in the time to start a site, though, also put in a little thought as to what you can and can’t do on that site and what you are willing to protect on that site.

This is a very fast overview of some of the legalities:

Copyright Material on Your Website

You can copyright original material you have put on your website--this includes writings, artwork, photographs, and other forms of authorship protected by copyright. 

http://www.copyright.gov/help/faq/faq-protect.html#website

If you do put original material on that site, don’t be surprised if people want to download it and make use of it elsewhere.  How you want to deal with that is something you should consider before you put up original work since policing intellectual property can be a huge job and if you don’t protect your intellectual property, you may lose it. That may include variants of the mark as well as the specific trademark. (Don’t try to trademark Toys ‘r’ ANYTHING because you will be getting cease and desist letter from attorneys for starters and they will pursue it.  Ditto any variant of McDonald’s.)

http://en.wikipedia.org/wiki/List_of_McDonald%27s_trademarks

Fair use

Fair use is a legal doctrine which explains when you can make use of material that is copyrighted on someone else’s website or when someone can make use of yours. Unfortunately there is no magic formula for fair use. Obviously you can quote a song title but not an entire song…it’s the stuff in between that may not be so clear.  I’m a cautious soul.  I like to err on the side of safety but not everyone is the same way.

http://www.copyright.gov/fls/fl102.html

Copyright law does not protect domain names, titles, slogans or short phrases. The Internet Corporation for Assigned Names and Numbers administers domain names assignation through accredited registers.  http://www.icann.org/

However, copyright protection may be available for some logo artwork and the logo artwork may be protected as a trademark.  Trademark protection may be available for domain names, titles, slogans or short phrases.

You can trademark a domain name if the mark is descriptive and not generic.  For example, SPORTSBETTING.COM was held generic and not allowed federal registration as a trademark for “provision of casino games on and through a global computer network wherein there are no actual monetary wagers; provision of contests and sweepstakes on and through a global computer network; [and] providing a web site on and through a global computer network featuring information in the fields of gaming, athletic competition and entertainment....”).

http://tess2.uspto.gov/tmdb/tmep/1200.htm#_T120903m

However, STEELBUILDING.COM  was considered highly descriptive, but not generic, for “computerized on-line retail services in the field of pre-engineered metal buildings and roofing systems.”

http://tess2.uspto.gov/tmdb/tmep/1200.htm#_T121504

Search Before You Use

Confusing?  Sometimes.  Why a mark is or is not allowed federal registration is often highly fact specific.  You want to take some steps to protect yourself before you start.

The easiest step is to do a registration search AND a Google search before you decide to use a slogan, logo, etc. The U.S. Patent and Trademark Office offers the public a free federal trademark registration search engine.

But just because a mark is not federally registered doesn’t mean it’s not a trademark. You don’t need a federal copyright or trademark to get some protection, although it certainly helps during litigation.  Do a search through Google or some other method to see what is actually in use out there in your field.

Remember that copyright and trademark law is meant to protect the original owners from having others infringe on their marks and you don’t want to be in the position of trying to scramble after the fact when your website has material, slogans, logos that are the same or similar to someone else’s in the same field.  Put some thought into what you want on the site, although with why and how you will protect it before you do it.

Treva Harte
www.loose-id.com