It can be any of the reasons you mention in your question. Someone can claim domain name infringement under trademark law and the Anticybersquatting Consumer Protection Act if that person feels your domain name infringes its existing trademark rights in a mark. That means your domain name is alleged to be either confusingly similar to, or dilutive of, the person's mark. The mark does not necessarily have to be registered for a person to claim trademark rights, but it certainly helps to register the applicable marks, if possible.
Have you received a cease and desist letter? Or did some third party disable your access to the domain name? More facts are definitely needed. I would also recommend that you speak with a NY Intellectual Property attorney. There are several good IP attorneys from NY that regularly post on these Q&As (e.g., Frank Nitoli and Maurice N. Ross) , so hopefully one of them will also respond to this question.
The foregoing response is provided for general informational purposes only and is not a solicitation for business. Please retain an attorney if you need specific legal advice. No attorney-client relationship is established until both you and me agree to establish one, and neither transmission of information herein, nor the receipt of such information, constitutes an agreement to establish an attorney-client relationship.
As Mr. Ford said, it can be for any of those reasons. In short, if you have a domain name that is confusingly similar to the trademark of another, you may likely be redirecting internet traffic that would otherwise be going to the domain name associated with the trademark. Seek the advice of a trademark and/or internet attorney for advice on your specific situation.
The answer to this question is for informational purposes only and does not form an attorney-client relationship.
With just a little effort you can use the internet to find the answer yourself. Start with the link below.
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
Are You Planning on Opening a New E-Commerce Website?
There is much you need to know as you begin your new business. I suggest you do not attempt to write your own legal policies. This is not where your training and background lie, and though you are probably as smart as an attorney, you do not have their experience.
Below is a checklist for legal issues I use for new e-commerce clients.
1. Business entity - Are you going to be a C corp, an LLC or a sole proprietorship?
2. Terms of Service - This is your contract with your visitors and is the most important item for any e-commerce site. A little work here brings big dividends in the future.
4. FTC guidlines - The FTC has been regulating business advertising for almost a century. All of their advertising guidlines apply to e-commerce sites.
5. Domain Name issues? Is your name available. Can you create a Trademark?
6. Trademark - Do you have a brand name free from conflict? Should you start with just common law rights? Should you register the mark, and when?
7. Copyright - If it is on the web, it already belongs to somebody. Did you buy a license for the images you are using? Do you have a DMCA notice on your web site?
8. Do you need a DMCA policy?
9. Web Site security issues?
10. Do you need and have an EIN? You can get that for free.
11. Do you have employees? - If so you need written policies regarding their authority and use of the internet.
12. Do you know the difference between a "browser wrap" and a "click wrap" and which do you need?
When I discuss this list with clients other issues arise. Finally, I always discuss with my clients their need for good accounting services. An accountant's advice as you start up can save you many dollars in tax that you might not save if you wait to speak to an accountant until your first tax return is due.
I hope this list will give you pause to think about those issues for which you might need to seek professional advice.
You may want to discuss your situation with a lawyer in more detail. Most lawyers on Avvo, including myself, offer a free phone consultation.
Andrew M. Jaffe
Attorney at Law
Practice Limited to E-Commerce and Internet Law
This post is provided for general informational purposes only and is not intended to be legal advice specific to you. This general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney client relationship is not established by this post.
There are many possible bases for infringement. The primary issue usually arises under trademark law. If a domain name uses words or phrases that constitute a trademark of another person or company, this may constitute trademark infringement. Further, people who buy and sell domain names for profit sometimes are found to engage in improper cybersquatting, which is another type of infringement. The domain name could also infringe rights of publicity or celebrities or rights of privacy in some circumstances. But as your question suggests, the main issue usually arises under trademark law.