It’s good Bluebox Now was able to solve its problem and move on. It’s just too bad it had to suffer through what I imagine were at least a few stressful days and sleepless nights. All over an issue that could have been avoided through a careful trademark search.
A new top-level domain (TLD), “.CO” has recently been created as a competitor to “.COM.” While it is currently more expensive (approximately $30.00 per year versus only $10.00 per year for the standard .COM), Google and other search engines will treat websites in this domain the same as any other. This means the .CO and the .COM will be ranked the same, based on both content and reputation.
The new .CO domain has several benefits. Because it is new, there are more available domain names available for consumer registration. The higher price should help preserve this increased availability by reducing speculators’ bulk purchases and website “parking.” Also, the .CO already has a meaning for non-U.S. residents, e.g. the BBC is found at www.bbc.co.uk. In addition, the shorter length and greater availability of the .CO mean that some surprisingly short and catchy names are available and ready for purchase. Finally, people looking for a website online are changing their method of searching. Increasingly, web visitors start their search at a search engine page instead of an “address bar.” Therefore, a highly ranked site (be it a .COM or .CO) will be found regardless of its domain name or ending.
Benefits aside, a new TLD still has its drawbacks. There is currently a lack of awareness in the marketplace regarding the .CO. A .CO address may look like a typo, as if the “m” was left off unintentionally, or potential visitors to a site might not trust a .CO address as much (or as little) as they’d trust the more widely used and longer available .COM’s. Another important potential drawback that will probably unravel as time goes on is the possibility of trademark disputes between different owners of a .CO and .COM with the same leader. It is something to keep in mind if you’re currently interested in buying a .CO. Whether or not this will develop into a trademark problem, we shall see in the (likely) very near future.
Consumer awareness of .CO will grow faster overseas due to its existing recognition, thus domestic recognition should not fall far behind. In the future, at least the short-term, the .CO will become a reasonable alternative to .COM’s that are either unavailable or too expensive to buy off of others.
Ironically, I was about to write a blog post, A New World of Orphan Works. I had wanted a picture of spilled coffee in an ad for OregonLaws.org: I had found this one online, perfect for my project, but without any attribution. Contacting the web page author didn’t help.
Enter Tin Eye, a “reverse image search”. Upload an image, and it instantly finds many places on the web where it appears.
It may turn into a really useful tool for several purposes. Here, it found unauthorized re-uses of a product logo belonging to Panic Software, a local Portland software shop:
Here, a more typical search result showing where one’s work ends up:
Finally, Tin Eye can be used to track down the origin of an “orphan work”. In my case, I discovered that I already had the rights to use the image (stock photo in a collection I own).
From the LexisNexis trademark law podcast: An alumni / fan of Auburn University designs and sells giant foam hands printed with university’s marks. Auburn files suit and has won a preliminary injunction.
What stands out to me is that a college’s or team’s name on a fan article does not seem like an “indicator of source” to consumers. This would distinguish it from Board of Regents v. KST, for example (sports fan / alumni uses alma mater’s mark in the name of his private company).
In other words, people walk around with “Ralph Lauren” printed on their shirts for entirely different reasons than, say, “Oregon State University”.
And when I (admittedly, a non-sport-fan consumer) see someone with Oregon State University on a sweatshirt, I don’t think to myself, “OSU made that great sweatshirt”, but rather, “That person supports OSU.” In my theory, this use is essentially descriptive, and the text is short for “A fan of OSU.” (I realize that even this longer version may not be truly descriptive, though.)
Additionally, I think that Kozinski’s arguments in Mattel v. MCA Records (a.k.a the Barbie Girl Song case, finding (1) a different type of use when in the name of an art work — this is analogous to the different use on a fan article — and (2) the broad First Amendment protection for not-purely-commercial speech) are persuasive here.
But maybe I’m the one who’s odd. Maybe sports fans, the consumers for these products, expect that only the mark owner manufactures/licenses these products.