Tuesday, February 07, 2012

A "restatement" about my own domain name "doaskdotell.com"

It just wanted to reiterate that I plan to continue using the “doaskdotell.com” domain name for the indefinite future, and that I am still working on the idea of a “do ask do tell” film.  The domain is registered with Network Solutions through December 2012, and it is expected that it will be renewed for three years or so.  I do not intend to register the core name with other tld’s (like .org, etc).  At various times, parked domains have existed with these tld’s.

All of my blogs and other important materials (links for purchase of books from e-commerce sites) can be navigated from this domain. 

I still believe that the best commercial use of the phrase would be a media production company or distribution company, emphasizing independent film related to the concept that the phrase expresses.  Obviously, a film on the history of “don’t ask don’t tell” would fit. Or so would a film based on the legitimacy (or illegitimacy, according to Facebook) of living a double life online.  (I’d hate to see the phrase used for something silly like “clothes”.  Let Old Navy be what it is.)

USPTO has changed the link of its web site recently. A generic search for my domain still yields only the same dead mark from 1996.

An important question is whether companies in different lines of business can use the same mark.  USPTO has generally said yes.  Lawyers tend to argue that one has to be cautious if a consumer would be likely to believe that the a company selling one product or service could logically sell the other.  Here’s one reference “Can I trademark a similar name in a different industry as a tradename?”,  at Avvo, from 2008, here

Also, the site “My Wife Quit Her Job” has a nice primer on trademark law and domain names, here

Could a mark used by music groups or parties be confused  with a series of movies or books?  Since music is media, and in the media world, many companies both distribute music and movies (as we know from all the copyright law and piracy fights), there could be more risk of confusion.  If a disco party was called that, would it be a problem for me?  No, not if relatively local.  But if Madonna used it as the name of her Super Bowl halftime party, there could be an issue.  But if that happened, the media would be tracking me down and interviewing me anyway, right?  Maybe I’d get free tickets and air travel to next year’s Lucas Oil.  (Watch out, in 2014, the SB will be outside, in a wintry clime – New York – maybe not so good.)

I’ve read that names of individual films and books are not trademarkable, but franchises (“Transformers”, “Twilight”, “Harry Potter”, etc.) are.  You have to watch if a keyword is buried in a phrase and not at the beginning (like IDG’s “for Dummies” books).  

Even so, recently, as an indirect result of research into the piracy issue (generated by SOPA), I learned of a fight over two films called “Shut Up and Sing”, with the second film having a name change.  But generally its common for more than one film to have the same name (for example, there are two important documentaries from different sources, both called “Collapse”, and both with a similar message).

I have two books on Amazon whose title starts with “Do Ask Do Tell” (link)  It would be an interesting legal question as to whether that could automatically constitute a mark. I don’t know.

An interesting (and troubling) question could come up with a domain name based on “common words” with an understood meaning that had been used largely for speech purposes and only minimally for commerce (goods and services), at least based on financial numbers.  Perhaps the site doesn’t sell anything or take credit cards or personal information directly but refers  (“outsources”) the visitors to amazon or other “corporate” e-commerce for all financial transactions (so as to avoid the additional security liabilities that bigger companies can take on).   Suddenly, a new company comes along, starts using the name, registers it as .tv, and says it has financial results and can hire people and give them benefits, maybe by selling something silly (even, say, sex toys).  Could it knock the original “speech oriented”  domain off?  I don’t know. I have never seen this question debated. 

But an important rejoinder might include the idea that in the modern world, every person needs to have a personal "brand" online, even if it is not "commercial" in the sense of classical trademark law.  Advertising entrepreneur Donny Deutsch (and business chum of Donald Trump) just produced a major video on this for AOL-Huffington (my "BillBoushka" blog Sunday Feb. 5).  People's names may be too common ("John Smith") or (from a foreign language) too hard to spell and remember (like mine), so the use of a catch phrase for a domain name can help establish publicity. Is this "right"?

Here is a YouTube video form Case Western Reserve in Cleveland, OH, 2009, “Signifiers in Cyberspace: Domain Names and Online Trademarks”.

This is part 2.  There are several parts.  Part 1 (over 100 minutes) doesn’t start until mark 11:45 in the video). Corynne McSherry from Electronic Frontier Foundation speaks in Part 1. 

I see that I previously addressed this issue on Feb. 4, 2010.

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