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Washington Journal of Law, Technology & Arts

Authors

Luke M. Rona

Abstract

Three appellate decisions illustrate the difficulty of acquiring trademark protection for domain names that include a top-level domain (“TLD”), such as “.com.” Courts have characterized these marks as generic or merely descriptive, which carries implications for the party seeking registration: generic marks cannot be protected, while descriptive marks can, assuming they possess a secondary meaning that makes the mark distinctive. Generic and descriptive domain names often indicate the services a company provides, with the addition of the “.com” TLD to indicate online services. One key test of genericness is whether the public identifies the mark with a service generally or with a company specifically. This Article examines the rationales supporting the generic-descriptive distinction for domain names with TLDs. When a website does more than merely sell a product online that could be obtained in a brick and mortar store—such as providing additional consumer tools and flexibility unique to the online medium—the domain name has an increased chance of being viewed as descriptive and potentially protectable.

First Page

61

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