Home > Research Legal Advice > Trademark Infringement > Domain Name: Nominative Fair Use or Trademark Infringement?
Asked almost 2 years ago - San Francisco, CA
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If I have a domain name, such as twitteridiots.com that provides goofy-looking backgrounds for Twitter pages and perhaps some commentary on the goofiness of twitter, would this be trademark infringement or considered fair use?
Considering there is no affiliation described with Twitter, there is nothing being sold, and it was registered in good faith. Toyota Motor Sales, U.S.A., Inc. v. Tabari seems to show this can be done.
Maybe it can. Your proposed domain name seems to trade on Twitter's name by using it as the 1st word of this domain, but its 2nd word also makes it obvious that you're critiquing their users. Parodying something by commenting on it and mocking it is a protected activity, but realize that having a good defense like parody or nominative fair use means asserting in court and winning, if you do get sued by Twitter's owners.
And it might not be enough to not "describe an affiliation" with them --- avoiding confusing consumers may require affirmatively making it clear that there's no affiliation with them, which would be a good idea in this case.
In the Tabari case, there was a disclaimer on the website that there was no authorized affiliation between Tabari and Lexus (while not required, a disclaimer is relevant to the nominative fair use analysis according to the 9th Circuit), and the Tabari website (buy-a-lexus.com) sold genuine Lexus cars. Neither seems to apply to your fact pattern. I also note that the 9th Circuit did hold that a more limited injunction may still be appropriate, remanded the case to the district court for further consideration.
Furthermore, trademark infringement is a fact-intensive inquiry that balances several different factors. Because of the limited nature of this forum, we can give you some general points, but you are unlikely to get the green-light answer you seem to be looking for.
That being said, having commentary regarding the social or aesthetic aspects of a commercial service does suggests fair use (To comment upon something, one should be able to use the name as part of the commentary).
However, having a viable defense is not the same as avoiding a dispute. This is a risk assessment that preferably should be made after consulting with a trademark attorney who can make a legal evaluation based on the facts of your situation.
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