What to Do If The Domain Name or Social Media Handle You Want is Already Taken
It can be a very frustrating thing when you think you’ve come up with the perfect brand, only to find out the domain has already been taken by someone else. In some cases, another party may have intentionally registered your business’ name as their domain name to prevent you from using it or to imitate your brand in a practice known as cybersquatting. There are steps you can take to find another domain name that works for you or to claim the specific one that you want and secure your brand’s online identity.
JMW’s intellectual property team has a wealth of experience in helping businesses to protect their intangible assets. If a domain name or other website content infringes upon your business’ trade marks, copyright or other protected assets, we can help. In such cases, legal action may be necessary to resolve this infringement and protect your IP. This may be done in a variety of forums, whether the courts, Nominet (the registry of domain names), or at the UK’s Intellectual Property Office. The team has vast experience in all of these areas and can provide specialist advice, no matter your circumstances.
Before thinking about obtaining a domain name, your business should obtain clearance and decide on a suitable brand name with specialist legal advice. It is important that this process takes place first, as that way you will be able to secure the legal rights (by way of a registered trade mark) to the brand for which you wish to buy the domain. Call us on 0345 872 6666, or fill out our online enquiry form and a member of the team will be in touch
Choose a Different Domain Ending
One way that you can keep the domain name that you want is by simply changing the ending. The most common domain ending is .com. However, there are now thousands of different domain endings for you to choose from. Choose a domain ending that is relevant to you and your business. Further, it is always desirable for businesses to obtain what are known as generic Top-Level Domain (such as those ending in .com). Such gTLDs command more trustworthiness and reliability with consumers.
When registering your domain, you should also think about whether you need more than one domain, or a portfolio of domains for the same brand. Often, it is valuable to gather a portfolio of the various available domains (.com, .co.uk, and others). A UK business may decide on a .co.uk domain ending, for example, but may also wish to try to secure the .com version to help it develop an international presence.
Make a Small Tweak or Rebrand
Try to think about any small additions that you can make to the name. If you have already established your business name, you can think of different ways to build on the name. The key to a good domain name is simplicity, so keep that in mind.
This decision relates to the due diligence work you do in relation to your brand when you first select it for your business. Clearance searches before adopting brands are vital to see if there are any risks (earlier trade mark owners, refusal risks, and similar challenges) that might prejudice your use and ownership of a brand.
If a domain name is already taken and is being used for a similar business, it may be best to go back to the drawing board and select a worry-free, strong and sustainable brand with advice from trade mark specialists.
Try to Buy the Name You Want
You may also try to purchase the name that you want from the current owner. It’s usually unlikely that the current owner will want to sell the name, as they may recognise that they can make a profit if the name is valuable to your business. If they do agree to sell the name, you should be prepared to pay a significant amount (depending on the owner’s own use of the domain, and other factors). If the price is unreasonably inflated, the domain is not in use, or your trade marks have been infringed, this may be a case of cybersquatting.
Take Legal Action
If you own a trade mark for a business or product name that is used in the domain name you want to secure, you may have the option to take legal action to obtain ownership of the domain name. For more information about activities that could constitute trade mark infringement, read our series of guides on trade mark registration and protection. You should consult specialist legal advice before taking action, as trade mark law is complicated and certain actions can harm any potential legal case you may have.
Are My Assets Protected if I Haven’t Registered a Trade Mark?
It’s always best to register a trade mark at the earliest possible opportunity, but if you have failed to do so, you may still be able to take legal action against a competitor or other entity using a similar trade mark to yours. This is known as “passing off”.
To prove passing off requires a strong standard of evidence. Without the legal protection of a registered trade mark, you must demonstrate that a mark belongs to your business or is strongly associated with it by your customers. The longevity of your relationship with the brand in question will be taken into consideration. If you have used a ™ symbol to indicate your intention to register the trade mark, this may also help, but it’s best to seek legal advice to discuss the types of evidence you may need to collect and present in your specific case.
To pursue legal action, you must also demonstrate that the use of the trade mark by another party is causing harm to your business or reputation. For example, if a competitor begins using a similar trade mark to yours to try to mislead your customers or imitate your products. However, if a competitor releases a product with a descriptive name that is similar to one of your products, it is less likely that you will be able to pursue legal action.
Talk to Us
Failing to protect intangible assets can cause serious financial losses for a business and allow competitors to imitate your products or poach your customers. Your recognisable brand elements may be protected, but by the time they have been infringed it may already be too late, and a proactive approach is vital.
To speak to a solicitor about your business’ intangible assets, registering a trade mark or protecting your intellectual property, call us today on 0345 872 6666, or fill in our online enquiry form to request a call back.
