Tuesday, September 16, 2008

Help! Someone Else is Using My Blog's Name!

If somebody wants to start a blog called "Baby Cheapskates", can they legally do so? What about "Cheapskate, Baby"? "I'm a Baby Cheapskate"?

No, No, and No. Each of the (made-up) blog names above violates U.S. Trademark law because it can cause confusion. A reader looking for my site, BabyCheapskate.com, may mistakenly end up on another, thinking she has access to the services and/or goods I provide on my blog when she doesn't. As a result of this confusion, business, i.e. traffic, is diverted from the original blog to the copycat blog, causing me to lose revenue or potential revenue.

Do you need to register your blog's name (service mark) with the US Patent and Trademark Office to be protected? No. Use of a service mark in commerce gives you common law rights to it (USPTO Trademark FAQs). Registering your blog's name does give you much more legal protection, however, which you can read about at the FAQ link above. And you should know that if another blogger wants to register your blog's name with the USPTO, she's not required to do a common law service mark search first.

So what do you do if you find a blog whose name is the same or too close to your blog's name? In my experience, infringing bloggers are quite often shocked to learn that they're in violation. The blogosphere, in general, is a friendly, supportive place and most bloggers want to keep it that way. A respectful but stern cease and desist letter that informs the other blogger that she's in violation of trademark law may result in a quick shut-down or name change. It may take a couple of these (ever more sternly worded) letters before you get a response or see the desired result. In order to collect damages (of up to 100,000), a blogger whose blog name has been copied must prove that the name was used in "bad faith" (ChillingEffects.org).

If the violator is a large outfit with big bucks to spend on lawyers' fees, you'll need to consider how hard you're willing to fight and how much you're willing to spend doing it. "[T]he powerful company ends up getting what it wants simply because the court system is manifestly unfair to those who can't afford attorneys," says Nolo.com in the article, "Avoid Trademark Infringement When You Choose a Domain Name."

Recommended Reading/Watching:
Trademark Law and Your Blog Domain
Chilling Effects FAQs about Domain Names and Trademark
Trademarks and Mommybloggers, more serious than You Think
Mamalogues vs. Momologue: A Trademark Battle in the Blogosphere
Sk*rt Forced to Change Name to Avoid Trademark Lawsuit

Related: Protecting Your Posts from Piracy

Disclaimer: This post is based on personal research and should not be considered a substitute for actual legal advice or your own research.
photo by greefus groinks