Overview

If your domain name is the same or very similar to another business's trademark, the trademark owner may someday (maybe someday soon) force you to stop using the name. Only by doing a search can you be reasonably assured that you have a legal right to use your proposed domain name. This chapter explains how to do your own search on the Internet or how to hire and use a trademark search service.
There are actually two elements you need to consider when determining whether or not your domain name may violate someone else's trademark rights. The first question, which you can answer with a trademark search, is whether your domain name is identical or very close to an existing trademark. The second issue is whether or not your use of the domain name would confuse customers, damaging the trademark owner's business or reputation. Deciding whether the simultaneous use of two similar trademarks is likely to create customer confusion is not always easy. (Chapter 7 discusses how to make this assessment; a consultation with a trademark attorney also may be wise, especially in close cases.)
For example, suppose you decide to start a Web-based business auctioning small antique collectibles such as old watches, jewelry and figurines electronically and at discounted prices. Your location in part of the San Francisco Bay Area called the East Bay prompts you to seek the domain name Ebaybuys.com. You search to see if the domain name is available from NSI and you find out it is available. You then surf over to the PTO's website, where you conduct a search of the PTO's registered and pending trademarks database using the instructions in Section C, below. You find the name Ebay is registered to Ebay, Inc., and that Ebay, Inc., is using the domain name ebay.com to auction antiques and collectibles as well as other types of goods.
The names Ebay and Ebaybuys obviously differ, but they may be close enough to confuse people. Because you also auction antiques, consumers might go to your website when they really wanted to go to Ebay's website. Or they might think that you are affiliated with Ebay because your domain name also uses "Ebay" as the root. This potential for consumer confusion means you are probably in danger of infringing Ebay, Inc.'s, trademark.
TipBe wary of search offers. Lots of banner ads on domain-name related websites offer services, including trademark searches. There is only one free trademark database available on the Web—the one offered by the U.S. Patent and Trademark Office and described in this chapter. Any other type of search is likely to cost you. It may be worth your while to pay for a competent search, but read this chapter before signing up. It may be that the service will charge you for the kind of search you can easily do yourself for free.