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Beyond Mere Words

Trademarks are not limited to words, but include logos and symbols. Trademarks may even be color, in the case of pink fiberglass, sound, as is the case with the NBC chimes, or scent, in the case of floral scented yarn. Trademarks also take on special attributes when used on the Internet. There are currently tens of thousands of trademark applications pending for .com domain names, animated browser icons, “e” marks (for electronic), “i” marks (for Internet), and “o” marks (for online) marks.

As with any other type of trademark, the types of protection available range from common law protection, which attaches to a protectable mark as soon as it is used in association with a good or service, to state law registration, to federal law registration. While state law protection provides some added benefit over common law registration, it is no substitute for full, federal registration, which provides constructive notice of the trademark rights and the availability of treble damages and attorney fees in the case of willful infringement

In determining whether to register your domain name as a trademark, it is important to be sure that your domain name is not merely an address, but acts as a source identifier for your particular good or service. To be registered as a federal trademark, the domain name must not primarily be generic or descriptive. The domain name must also not be offensive or primarily a surname (unless it has demonstrated a “secondary meaning” in the marketplace).

When registering your domain name, it is important not to register the http://www portion of your domain name. It is also advisable to leave off the top-level domain name, such as .com or .net from any registration. Such top-level domain names do not add additional uniqueness to your registration sufficient to overcome a similar mark, but may be held to limit the scope of your protection against subsequent infringers.

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