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  • #978842
    Dennis Smechich
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    Hi All

    I’ve been looking around for a while but cant seem to get any information so I thought I would ask the pro’s here.

    Please note that the names, websites, etc below are all made up.

    Lets say I sell laptops on my site called LaptopsAustralia.com. I operate under the business name MyHomeBusiness and NOT under a company PTY LTD. Our invoices also has the words Laptop Australia and the business name MyHomeBusiness on it.

    Now lets say someome else decides to start up a company PTY LTD with the company name “Laptop Australia”. Could they possibly force me to shut down my website because of copyright issues since my website has the same name??

    Thanks

    #1109882
    My Wedding Concierge
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    I’m no expert, but I don’t think so if you’re using the website for the purpose which relates to the domain.

    #1109883
    JacquiPryor
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    Hi Dennis,

    The short answer is “it depends” (on a number of other factors). And, if this is a situation you are in or faced with – the specific names/details would be necessary to properly advise on your situation. Please feel free to PM me or email me with some more specific details and happy to have a look over it and give you some thoughts.

    In the mean time, the following is provided as some very general information:

    Use of a “name” would fall under Trademark, rather than Copyright for a start.

    If you have used and promoted a particular name for X period of time in the marketplace, and after you started using that name someone else registered a company then this wouldn’t given them the right to tell you to stop using that name. A company name does not afford ‘rights’ or ‘ownership’ to a name in this manner – a trademark could.

    But – if someone registered a trademark even for the particular name and you can demonstrate you used the name before they first used or registered the trademark (which ever is the earlier date) then this is a valid defence to any claim of trademark infringement.

    Other factors could include whether the actual name is as descriptive as the example of “Laptops Australia”. Generally speaking, a person has a right to use something to describe a quality, kind, purpose or charastic of their products or services and this could also apply as an argument if someone is trying to stop you using a trademarked name.

    There are also different rules around validity of domain names and policies to register based on the type of name – such as .com or .com.au.

    In addition to the above – if the company who you fear might try and take away the web address is particularly well-known they may have further rights outside of trademark, copyright or domain rules and laws.

    I would also note that if you are displaying “Laptops Australia” on invoices, websites and the like along with your business name “MyHomeBusiness” you need to consider whether it looks like you are actually trading as Laptops Australia. for example, if a customer goes to your site or sees documents to they consider they are doing business with “Laptops Australia”? If so, this would suggest that you should also have this registered as a business name. Now, if someone else has got that same name as a Pty Ltd it could be difficult to register the business name.

    Copyright wouldn’t really apply in this situation, unless they were claiming (for example only) that you have actually copied the content of their website and put it on your own… copyright covers more ‘extensive’ things usually than a name or title – such as website content or other literary work.

    Hope that helps initially. As noted, feel free to get in touch with the more particular details if you require further assistance.

    #1109884
    Kennethti
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    I largely echo Jacqui’s concerns and will give you a resounding answer to the effect of “it depends”.

    Usually however it is difficult to seek copyright protection over short phrases however trade mark protection may apply depending on the situation.

    Long story short and without looking at your specific situation generally you should:

    1. Do your research about branding and make sure no shoes are being tread on.
    2. Establish your pty limited.
    3. Register your business name.
    4. Register your website.
    5. Apply for a word or logo trade mark protecting your domain name.
    6. Obtain your trade mark registration after 7-8 months.
    7. ???
    8. Profit.
    #1109885
    Divert To Mobile
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    If they have a trademark they have rights and could even take your domain if they make a claim and you dont respond with a good argument.

    auda dispute resolution policy

    The section is 4.a

    Hope its a good read for you.

    Good domain name by the way.

    Steve
    edit. btw I really doubt they managed to trademark “laptops australia” so dont let them bluff you.

    #1109887
    JacquiPryor
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    If they have a trademark they have rights and could even take your domain if they make a claim and you dont respond with a good argument.

    auda dispute resolution policy

    The section is 4.a

    Just to clarify – the AUDA dispute policy won’t necessarily help with a .com domain dispute. And, for a .com.au name the person complaining needs to demonstrate more than simply owning the trademark – other criteria must be proven to ‘win’ the domain dispute.

    And – whilst it’s correct to say that “if they have a trademark they have rights” – for the reasons outlined in my earlier post, there are also times where having a trademark does not mean they can stop someone else using the same/similar name… there are many ‘rights’ that come with having a trademark – the ability to take trademark infringement action is just one of them when appropriate.

    I think that the “Laptops Australia” name was used by the OP as an example.. so, I agree it would be difficult to register this name but without knowing the actual name subject of the post it’s a little tricky to say…

    #1109888
    victorng
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    Divert To Mobile, post: 122424 wrote:
    If they have a trademark they have rights and could even take your domain if they make a claim and you dont respond with a good argument.

    auda dispute resolution policy

    The section is 4.a

    Hope its a good read for you.

    Good domain name by the way.

    I think the domain name was given as an example only.

    Just because someone has a registered trade mark doesn’t mean they can just take your domain.

    #1109889
    Dennis Smechich
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    Egad thanks for those replies! What an awesome bunch in this forum!

    I was asking because i’m listing pretty well on the search engines and was worried that some punk competitor could do something dirty like that to get me to give up the domain name.

    As most have said, its not a black and white answer as it depends on the names and other details. I’ll see how i go but I think you have all given me enough info to think about. And im thinking i may as well just register the PTY LTD which will put this all to rest.

    And no the names we not real, just examples.

    Thanks again!

    #1109890
    Dennis Smechich
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    victorng, post: 122440 wrote:
    I think the domain name was given as an example only.

    Just because someone has a registered trade mark doesn’t mean they can just take your domain.

    I agree. Now that i think about it, its common sense. Because if it WAS possible to take someone else’s domain name under a trademark rule, then there would be tons of people simply getting very popular domain names and then registering that name as a PTY LTD, and taking that popular domain name.

    That would be chaos!

    #1109891
    JacquiPryor
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    Hi Dennis,

    Chances are if you are actively using and promoting and have done for a while, it would be pretty difficult for someone to now register a company and stop your website… But – ‘safest’ thing to do – as per Kenneth’s list above:

    Apply for a word or logo trade mark protecting your domain name.
    Obtain your trade mark registration after 7-8 months.

    As the owner of a trademark you have the right to use whatever name or logo etc you have registered, in relation to the goods/services you nominate. So, having the ‘right to use’ means others can’t tell you to stop and claim you are infringing… it gives you other rights too, but that’s the main one in terms of ensuring you can absolutely continue using and promoting your particular name.

    All the best with it :)

    #1109892
    Kennethti
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    Don’t forget to profit, that’s the most important part of my list.

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