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Is it OK to use pop media reference for a personal domain name?
I'm finally in a position in my life to afford a personal domain. The name I'd like to use is name of an episode from a moderately popular TV series. The series ended its run few years ago, but I'm not sure how copyright/trademarks work.
So far, I'm planning a strictly noncommercial personal use only. Will the choice of domain name be any trouble down the road?
I am most definitely not a lawyer, but I imagine you would be okay on that front.
This video from a US copyright attorney on YouTube that covers the basics of trademark, copyright, and fair use, may be able to help clear some things up for you (assuming you're also from the US): https://www.youtube.com/watch?v=LvdiUstJZg0
TL;DW - I am also not a lawyer (or even American), but as far as I understand it, what you intend to do should be perfectly fine, especially given you're basing the name on an episode name (which is not usually trademarked in the first place AFAIK) and not the show name itself, and should be even safer if the subject matter you intend to cover has absolutely nothing to do with the specific contents of the show in question... but even if you do intend to focus on content about the show, if you're doing it for the purposes of criticism/critique, parody/satire, etc. that would potentially fall under fair use anyways.
Thanks a lot with the link! I am not American either, but I'd rather be safe than sorry.
Not a lawyer, and the only knowledge I have of this from French law, but the basic idea was that if a company registers a phrase as a copyright or trademark they have a right to the associated Top-level domain. So for example: if I register "Death and Sons" as a trademark for my business I have a right to the domain deathandsons.com.
This would not make a difference in most cases. You could hope a company would overlook you, but usually the corporate machine prefers to be cautious and avoid exceptions.
If the episode name is (or becomes) copyrighted or trademarked then they could force you to hand it over, if not you're likely fine. But again: not a lawyer, there could be more to this.
If that is the case, how do the French courts handle conflicting trademarks domain name rights? Because at least here in Canada, and AFAIK in most other countries as well, trademarks can have conflicting namespace since they are market sector specific, i.e. I can own a trademark for "North Pole" if that's my company name, but that trademark would only apply to whatever specific market sector my business is in, and others out there could still trademark the same combination of words for their particular industry as well. And in cases like that, who would get the right to the domain name?
Also, what about preexisting domains, e.g. if northpole.fr already existed, but it was just someone's personal domain, does a company registering a new trademark on that phrase suddenly grant them a superseding right to the domain name over that of the previous domain owner if they had no trademark? What about vice versa, if a trademark existed for quite some time but the holder never bothered to register a domain, and I just now happened to register the same combination of words for my own personal domain, could I potentially lose it later when the company finally decided they want a website?
For all those reasons, tying domain rights to the trademark system seems incredibly problematic to me.
The more-or-less canonical example of the same trademarked term existing in different markets is Apple v. Apple, presumably because they've sued each other so many times that the case law is now well-trodden.
In any case, it doesn't seem to be contentious that Apple Computer owns apple.com, even though Apple Music predates it by eight years.
Two important things to note before I answer your specific questions:
For disputes between parties incorporated in France and the EU the law of 22 March 2011 more or less maintains a "first come, first serve" principle. If somebody registers "Northpole.fr", has a legitimate claim to it, and you didn't even though your company is called "North Pole SARL" then you're simply out of luck.
International disputes are obviously a lot trickier, and even further removed from what I know. But I think it's safe to assume that, lacking any instrument to compel a foreign entity to appear in court, it would probably just go nowhere, since that's usually how it goes for other French laws regarding online content. Most French companies recommend resolving such disputes extra-judicially instead.
So the long and short of it is, yes, in theory if a company applied for trademark (at any point), can prove this in court, and demands the transfer of the domain to them following regular procedure then the court will likely rule in their favor and you will be required to rescind your ownership of the domain. Even if the company had the trademark but never chose to register the domain.
But if you can prove that you have "a legitimate interest and are operating in good faith" you can contest the claim, which will then be arbitrated by the courts and the Ministry of Communication.
Now there might be some shenanigans involving whether or not the filing of the trademark and subsequent request for domain transfer was done in "good faith" but I'm not prepared to speculate any further than that.
I agree, especially since the French IP law system is much different from the US system, which has become a sort of default for most of the internet. I think the French laws are more of a stop-gap solution made to plug some holes rather than provide any kind of comprehensive and workable framework, but it is what it is.
That seems reasonable enough on its surface, I suppose, but I suspect it also could lead to quite a few legal quagmires in practice, and likely favors big players over small ones due to the cost of lawyers/lawsuits and headache of having to deal with arbitration. Thanks for taking the time to answer my questions though!
You're pretty much dead-on, yes. Lawsuits in France aren't quite as financially ruinous for smaller players as they are in the United States, but they still take a lot of time and effort.
OT, but "Death and sons" sounds like a killer name for a business.
Well it depends on the business, right? I'm not sure I'd leave my child in charge of a daycare center operated under that name 😆