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  #1  
Old 02-04-2011, 01:43 PM
HipChickHeather HipChickHeather is offline
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question about site name copyright

Hello all!

I have a question!

There is a site I just found that has a very different URL than mine, but she's named her blog something very similar to mine. It's what's in her header and what she calls her blog and what she SEO's for.

My website is name and the url is hip chick pregnancy guide and she is Hip Chick's Guide to PMS Pregnancy and Babies.

I can see there could be much confusion!

What would you all advise I do? Should I just contact her and ask to change or go another route?

Her domain is only 2 months old
 
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  #2  
Old 02-05-2011, 02:52 AM
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I arent a lawyer but i dont believe that you can do anything.

Her name isnt identical, her url is different and as long as she dosent try and mislead people into thinking she is connected to you in any way, there probably is no breach.

Take my site which is called The Dart Shop. I know someone is the UK has the same name, though a different url, whilst that is my EXACT url. I cant stop him.....the only possible way would be to have that registered in the UK as a business name and take that route.......which of course isnt viable.

To be honest.....if he asked me to use a different name because it clashes, i would simply laugh at him.

Just my thoughts and not based upon facts, as such.
 
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  #3  
Old 02-06-2011, 02:38 PM
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Jim Gillum Jim Gillum is offline
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From another non-lawyer...

Problems arise with generally used names....like Dart Shop....must be hundreds around the world.....have heard "hip chicks" used for years.....
The solution is to trademark the name.......difficult with widely used generic type names....
My 2 cents.....
 
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Old 02-12-2011, 08:00 AM
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JakeMoore JakeMoore is offline
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I kind of agree. There may be something you could do about it, but it is likely to cost a small fortune to enforce if she does not comply. I think you could qualify the terms hip chick if you narrowly defined its use. You might want to check into some of the online services that help you do that for cheap. You may also have a state law or common law trademark because of your use. Bottom line with all intellectual property issues however is they are expensive to enforce so usually the best option is to go with trying to work something out.
 
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Old 02-13-2011, 08:46 AM
HipChickHeather HipChickHeather is offline
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I agree

I agree because when you do a google search, our names can easily be confused.

Thinking about my next step
 
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  #6  
Old 02-13-2011, 02:02 PM
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Quote:
Originally Posted by HipChickHeather View Post
My website is name and the url is hip chick pregnancy guide and she is Hip Chick's Guide to PMS Pregnancy and Babies.
Absent your having established a prior legal claim to the phrase "hip chick" when used in relationship to matters relating to pregnancy, either by virtue of having filed for and been granted a suitable Trademark or Service-mark, or by having gained widespread public recognition using said phrase, you've no recourse.

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Old 02-13-2011, 03:22 PM
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Quote:
Originally Posted by deepsand View Post
Absent your having established a prior legal claim to the phrase "hip chick" when used in relationship to matters relating to pregnancy, either by virtue of having filed for and been granted a suitable Trademark or Service-mark, or by having gained widespread public recognition using said phrase, you've no recourse.

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This is not quite right. If you can establish that you used the name first you still have a claim to the trademark, at least to how and where you used it. It is just harder and more expensive to protect the name after the fact. The real question is when was it first used in commerce and for what use/purpose. A trademark definitively establishes that and provides specific statutory remedies for its illegal use.
 
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Old 02-13-2011, 04:02 PM
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Mere use alone is not sufficient for establishing a valid claim. It must be demonstrable that there was a public perception that the mark in question was associated with you. The fact that the mark here in question is a generic phrase makes that all the more difficult.

Furthermore, that those in a certain local may associate such mark with you does not perforce establish a valid claim to it in all places.

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Old 02-13-2011, 09:36 PM
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Quote:
Originally Posted by deepsand View Post
Mere use alone is not sufficient for establishing a valid claim. It must be demonstrable that there was a public perception that the mark in question was associated with you. The fact that the mark here in question is a generic phrase makes that all the more difficult.
It is not a generic phrase in the context it is used. Otherwise generic phrases are readily trademarkable in specific contexts. Witness Apple or Face Book. She could readily limit it to issues surrounding pregnancy...granted I have not researched the records to see if there is a prior hip chick related to that industry.

Quote:
Furthermore, that those in a certain local may associate such mark with you does not perforce establish a valid claim to it in all places.
Of course, but the internet is world wide and unless the site is specifically geo-targeted the locale argument breaks down.
 
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Old 02-13-2011, 10:18 PM
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Quote:
Originally Posted by JakeMoore View Post
It is not a generic phrase in the context it is used. Otherwise generic phrases are readily trademarkable in specific contexts. Witness Apple or Face Book. She could readily limit it to issues surrounding pregnancy...granted I have not researched the records to see if there is a prior hip chick related to that industry.
I did not say that it was not possible to gain a Trademark/Service-Mark on a generic phrase, only the the bar was higher. Synthetic names/phrases are more easily protected.

Apple did not gain protection for the word "Apple," but for the synthetic phrase "Apple Computer." And, Facebook is a synthetic word.

In this case, "hip chick pregnancy guide" may very well be protectable as a mark. However, that will not necessarily bar another from using, or even Copyright protecting, the title "Hip Chick's Guide to PMS Pregnancy and Babies" for a written work. Then, there is the issue of the "Hip Chick Pregnancy Center," which is claimed by Organized Wisdom.

Quote:
Originally Posted by JakeMoore View Post
Of course, but the internet is world wide and unless the site is specifically geo-targeted the locale argument breaks down.
Protection for marks is granted only on a local basis; there's no such thing as a "worldwide" trademark/service mark.

Here in the US, marks are registered at both the State and Federal levels; each provides protection to the holder only with the jurisdiction of issue. Extra-territorial protection exists only to the extent agreed to by Treaty or similar compact.

BTW, in this case, since the name in question identifies a party who provides a service, rather than a good, the appropriate mark would be a Service Mark.

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Last edited by deepsand; 02-13-2011 at 10:37 PM.
 
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  #11  
Old 02-13-2011, 10:51 PM
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Deep's answer is not quite right, but if you decide to proceed with protecting or enforcing your attorney will help you with the fine points of law.

And the general thrust of this entire post is that it not easy or cheap to enforce intellectual property rights even when you have already registered the term. It's is more difficult and more expensive and less sure when you have not. You can except an enforcement case to be in excess of $10,000 of legal fees and many run faaaaar more than that.
 
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  #12  
Old 02-13-2011, 10:59 PM
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Quote:
Originally Posted by JakeMoore View Post
Deep's answer is not quite right, ...
Kindly elaborate.

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  #13  
Old 02-14-2011, 07:34 AM
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Not a lawyer here either, though I will attempt to employ a little common sense to that which has already been presented by others here.

So you have a website, you have a specific URL...the question are they yours?
Yes those are yours, you've paid for the specific URL and no one else can take that exact same URL. You've created the website so no one else can make an exact duplicate of your content or graphics as you have the rights to what you have paid to have created or created yourself.

What about my idea??
Ideas and ideologies are very difficult to protect. Do you have the sole right to be the one and only outlet for a subject? That answer is obviously no, do you have the rights to the way the content is presented or represented, perhaps to an extent but unless the content is exact in comparison there really isn't anything you can do.

Take for example my domain and company name of Your Web Crafters my domain name is of course yourwebcrafters. If you look around though there is webcrafters, web-crafters, floridawebcrafters, thewebcraft...and on and on and on. We all do the exact same thing, create websites and there is no possible way for any of us to tell the others that they have to change their name, their profession, or their marketing techniques as long as we don't attempt to represent ourselves as being associated with or actually being the others.

Unless you are established on an extreme level such as a major corporate or business entity such as PayPal, Microsoft, Apple, Sears, Bank of America...well you get the idea, there is really no recourse and the available recourse of trademarking a name etc are extremely effort and money intensive.

So what are your options?
Differentiate yourself from the pack, each company has a preferred way of associating with the community and visitors, these things make you unique, while the name may be similar, marketing practices such as how you go about it, SEO, Forum and Blog posts etc may even be similar in effort while different in content and quality, creating a specific brand (Visual associated with textual) you will create your own identity that will let those know that are following you, finding you and the like whether they have reached the right place or not.

Try typing in paypale, or paypol, youtub dot com or other misspelled popular company domains in the browser and see what comes up, these are very huge and trademarked entities and they have others that are doing their best to take advantage of typos and misspellers to take a cut of the traffic. It is simply the nature of the beast so to speak, spending thought, time, effort, or money in most cases to attempt to prevent it is a futile journey in most cases; and a distraction from you focusing on simply making yourself the best that you are able to be while branding yourself for uniqueness and separating yourself through quality rather than through petty legality.

Again, just my two cents worth
 
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  #14  
Old 02-14-2011, 07:57 AM
RachelCorrine RachelCorrine is offline
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Unless you have tradmarked or copywrited your logo and name there is sadly nothing you can do. If I were you, I would write her a nice email and see if she doesn't mind changing her name, as long as you did have it first. I had a similar experience, and as long as heads remain level, these things can usually work out.
 
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  #15  
Old 02-14-2011, 04:42 PM
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If you feel strongly enough about formally protecting "HIP CHICK PREGNANCY GUIDE," and understanding that such will not necessarily prevent another from using "Hip Chick's Guide to PMS Pregnancy and Babies," you can yourself file for such Service Mark, without need of an attorney. See http://www.uspto.gov/trademarks/basics/index.jsp .

You'll probably want to file under both of the two Trade Classes here open to Service Marks relating to "pregnancy":
  • 041 - Providing an on-line computer database featuring information regarding exercise and fitness before and after pregnancy
  • 044 - Providing an on-line searchable database featuring health-related information on all the risks that come with pregnancy and delivery for both mother and baby
As for Proof of Use, that's traceable at least as far back as 28 OCT 2005, via the Internet Archive Wayback Machine, as shown at http://replay.waybackmachine.org/200...ncy-guide.com/ .

Bear in mind that having been granted a Service Mark does not mean that the US Federal Government will make any efforts to defend it; that burden rests solely with the holder of a mark. And, failure to defend can result is the loss of any claim to the mark.

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Old 02-14-2011, 07:53 PM
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Please remember unless someone is specifically giving you legal advice they may not have all of the information. You should consult with your own attorney or make your own independent judgment. Even areas of law that seem like you can research them online as a layman have complexities and subtleties that can be traps if you take well meaning advice.

Websites names, urls, etc can also be trademarked. Servicemarks and trademarks have different standards and requirements. The biggest mistake made by most people who go it alone is either choosing too broad of a category in which case the application gets denied if you don't modify it sufficiently based on the initial review or too narrow in which case you get far less protection than you could have. It is well worth it to pay for a professional search even if you decide to go it alone because that will give you good guidance on category conflicts and potential category openings.

It is likely that you could get a mark that would prevent the PMS, Pregnancy and Baby guide from being able to use that name if you act soon enough. It does not have to be the exact same name, just deceptively similar. The average person could be confused between the two.

With reference to being able to mark a generic name, last fall there was a big news story about Facebook getting close to a trademark on the word Face. http://money.cnn.com/2010/11/23/tech...face/index.htm

A lot of things CAN be done and it becomes a business decision as to whether you spend the money to do them and then enforce them. If you get protection and don't enforce it, it's like you have no protection at all.
 
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Old 02-14-2011, 08:34 PM
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Quote:
Websites names, urls, etc can also be trademarked. Servicemarks and trademarks have different standards and requirements.
Per USPTO:
Quote:
A trademark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.
Quote:
A service mark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of a service rather than goods.
When you search the Identification of Goods and Services Manual (ID Manual) to determine the Class or Classes applicable to your mark, look to the Type column, where "G" denotes "Goods;" "S," Services."

You cannot get a Trademark for a Type "S" Class; neither can you get a Service Mark for a Type "G" Class.

A Search for "pregnancy" yields only the two cited "Service" Classes; searches for "child birth" and "childbirth" yield no results.

Quote:
It is likely that you could get a mark that would prevent the PMS, Pregnancy and Baby guide from being able to use that name ...
While possible, to say that it is likely is purely speculative.

You can, of course, engage an attorney, at your own expense, in an attempt to persuade/dissuade the other party.

FWIW, I speak as one who:
  • Is formally schooled in Patent, Copyright & Trademark Law;
  • Has practical experience in the acquisition of marks; and,
  • Regularly discusses such matters with attorneys practiced in the art.

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Old 02-14-2011, 09:10 PM
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Quote:
Originally Posted by deepsand View Post
Per USPTO:


When you search the Identification of Goods and Services Manual (ID Manual) to determine the Class or Classes applicable to your mark, look to the Type column, where "G" denotes "Goods;" "S," Services."

You cannot get a Trademark for a Type "S" Class; neither can you get a Service Mark for a Type "G" Class.

A Search for "pregnancy" yields only the two cited "Service" Classes; searches for "child birth" and "childbirth" yield no results.


While possible, to say that it is likely is purely speculative.

You can, of course, engage an attorney, at your own expense, in an attempt to persuade/dissuade the other party.

FWIW, I speak as one who:
  • Is formally schooled in Patent, Copyright & Trademark Law;
  • Has practical experience in the acquisition of marks; and,
  • Regularly discusses such matters with attorneys practiced in the art.

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Deepsand, provide links for the above quotes please. (As you would require from others to be able to read/verify the quotation in full. )
 
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Old 02-14-2011, 10:31 PM
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Originally Posted by HTMLBasicTutor View Post
Deepsand, provide links for the above quotes please. (As you would require from others to be able to read/verify the quotation in full. )
http://www.uspto.gov/trademarks/basics/index.jsp

http://www.uspto.gov/faq/trademarks.jsp

http://www.uspto.gov/faq/trademarks.jsp#_Toc275426672

http://www.uspto.gov/faq/trademarks.jsp#_Toc275426673

http://tess2.uspto.gov/netahtml/tidm.html

http://www.uspto.gov/trademarks/basi...rect_links.pdf

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Old 02-15-2011, 11:28 AM
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Quote:
Originally Posted by deepsand
FWIW, I speak as one who:
Is formally schooled in Patent, Copyright & Trademark Law;
Has practical experience in the acquisition of marks; and,
Regularly discusses such matters with attorneys practiced in the art.
I am certain my training and experience in trademarking and servicemarking is at least equal to yours deep. The point is with the law there are few absolutes. There is almost always a counter point.

The definition of goods and services is accurate, but was written before businesses which existed primarily online came into being. You still need to analyze the nature of the online business because it may be a good or it may be a service or it may be able to qualify in both. Plenty of businesses are both and then they make a business decision whether they get one or both protections (or neither).

The point is that it is impossible to know all the information to give specific legal advice on a specific situation with the information given. Trademarks and servicemarks, while they appear straightforward, still have many subtleties. It's like me fixing my plumbing. I've read how to do it. I've done plenty of plumbing fixes, but I don't know enough to know what I don't know. I still do plumbing myself a lot, but I also sometimes create more problems for myself because I tackled a project I should have left to a professional.

If you get it right it was a great cost-saving strategy. If you get it wrong, you've cost yourself more trying to fix it. Deep does provide good starting points to make that decision.
 
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