Until recently your website’s Top Level Domain or TLD was unable to be given a trademark or copyright by the US Patent and Trademark Office (USPTO) for very technical reasons. This meant that if you had a TLD that ended with .com, .org, .net or other prominent TLDs from ICANN that you couldn’t protect your domain name from duplication using other TLDs.
With the introduction of potentially hundreds of new TLDs called generic TLDs (or gTLDs) in the ensuing months, the USPTO has recently issued guidance as to when your TLD could be eligible for a copyright or trademark. While you can read the entire document here, our summary might be easier on your time.
In order for you to be able to register your existing or new gTLD or TLD, you’ll need to provide the USPTO with evidence of the following:
1, Your gTLD will be a “Source Identifier”
What’s that? According to Digimind a source identifier is an agent that keeps you updated on the new sources that need to be tracked. Meaning that so long as your gTLD can be considered something that can be tracked or found as a source of information you’ve met this criteria.
2. Prior Registration of your Business Name as a Trademark or Copyright
You should have already registered your operating business name under that is extended by the .com, .org or .net etc. with the USPTO for a potential trademark or copyright. If you haven’t yet registered your company name with the USPTO for a trademark or copyright, then it’s unlikely you’ll be able to register you domain name for a trademark or copyright before then.
3. Provide Proof that your gTLD will be perceived as a Trademark
According to the USPTO “Because consumers are so highly conditioned and may be predisposed to view gTLDs as non-source indicating, the applicant must show that consumers already will be so familiar with the wording as a mark that they will transfer the source recognition even to the domain-name registry operator and registrar services. ”
Marketing or advertising material that specifically advertises the gTLD address should be submitted as should data relating to the amount of time and money you spent on such advertising campaigns.
4. Have a Registry Agreement with ICANN
Just because you’ve registered a domain through your names provider (like godaddy.com or netfirms.com) doesn’t necessarily mean that you have an agreement with ICANN. Moreover, as the trademark/copyright applicant you need to be the person/entity that is named as the registrant of the domain name. So if you operate a site, then you can only the be person who, by ICANN, is registered as the domain owner, if your company is the operator, then it must be the registrant. This “chain of title” issue will become more difficult if you have purchased sites and the registration has not been properly transferred to you by ICANN or if you have used a registration agent in the past.
5. Provide a Legitimate Service for the Benefit of Others
According to the US Trademark Act in order for a service to be considered legitimate, it must primarily benefit someone other than the applicant (owner). So this means that as the registered domain operator you’ll need to provide evidence that the use of the domain is for the benefit of others including:
- that you intend to use the gTLD as a trademark
- describe how the gTLD will target industries or consumers
- describe if other gTLD’s will be registered and used under the same trademark (i.e. .bus, .fin, .xxx, .info, etc.)
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So what wouldn’t quality for a Trademark or Copyright?
Domain names that were used for internal purposes would not qualify. So a company intranet domain name could not receive a trademark or copyright. But a domain name used as portal for external suppliers or affiliates could receive a trademark or copyright.
Our final thoughts…
With the creation of ICANN’s hundreds of new gTLDs, securing your main domain personification and brand development will become even more important for all sorts of entities. This does not necessarily mean that you should go out and buy all the potential domain names available (a common parking strategy), but instead could choose, in the US at least, to trademark or copyright your main brand name and its associated gTLDs. Before engaging in such a strategy you should, of course, check with your local patent and trademark agent to ensure that you meet all the criteria mentioned above (don’t know one… send me a note and I’ll make an intro).
Allowing you to create trademarks and copyrights of your TLDs will strengthen your Intellectual Property Assets and increase their overall value as the rights enured from these marks allow their owners to provide for broad enforcement actions. We think that the USPTO is on the right track with this process and believe that the benefits far outweigh the costs for both online and offline companies.