Trade Marks on the Internet copyright 1996-2003; last updated August 14, 2003




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GENERAL PRINCIPLES

The Internet


The Internet enables interconnectivity of people, ideas and information. Originally developed and used for military and research purposes, the Internet has evolved into a global network of computers that has revolutionized the way people communicate and conduct business. Internet.com anticipates that there will be over one billion people online by 2005 and a report by the Canadian E-Business Opportunities Roundtable has projected that e-commerce will exceed four trillion dollars by 2004.

Web sites "on the Internet" are actually files stored on computers (servers) which are connected to the Internet. Each computer attached to the Internet is identified by a unique number called the Internet Protocol (“IP”) number. The IP number is analogous to a telephone number for the computer. Rather than have to remember a number, a system was developed that allowed the use of nicknames as shorthand for the IP number. The nickname associated with an IP number is called a domain name. The Internet Corporation for Assigned Names and Numbers (“ICANN”) manages the domain name system and is the body responsible for assigning domain names and IP numbers.

The pages of a web site are most often written in a computer language format that can be read by browsers such as Netscape or Internet Explorer. The most common format is called HTML (an acronym for HyperText Markup Language). HTML allows authors of web pages to create hypertext links allowing the person browsing the page to jump to another web site at the click of a button. For example: clicking on this link takes you to Microsoft's home page, clicking on this link takes you our law firm's home page. The links can be underlined text or graphics surrounded by an invisible button. To view the HTML code on this page, click on your browser’s “View” button and select the “Source” or “HTML” option.

When you click on a hypertext link, your computer asks the Internet to download a copy of the web page whose address is in the hypertext link you clicked (analogous to touching a footnote in a paper). A message is sent to the requested site and a copy of the page, together with any of the graphics contained (or referenced) on that page are downloaded onto your computer. Although you feel as if you are visiting their site, in fact, their web page has visited you.

HTML allows for text that is invisible to the reader to be read by browsers or search engines such as Google, Yahoo or Alta Vista. This invisible text can be stored within comment lines or "meta-tags". Just as the function on your word processor can "search and find" words in a word processing document, search engines routinely search the web pages on the Internet looking for and indexing keywords so users can search their keyword index to find pages of interest.  A browser will see a word used in a meta-tag even though normally you cannot.

Trade marks appear all over the Internet, as domain names, on web pages and in meta-tags. Trade mark law applies online because it governs the use of trade marks.


Trade Mark Law


A trade mark is a word or symbol which acts to identify a product or service so as to distinguish it from the products or services provided by others. In Canada, the law governing the regulation and use of trade marks is found in the Trade-marks Act and in the common law action of passing off.1 Most other jurisdictions have also enacted legislation governing the registration and use of trade marks. This legislation typically makes provision for the registration of trade marks with a central office.2 In Canada, trade marks are registered by filing an application with the Canadian Intellectual Property Office. Trade marks which are clearly descriptive, or deceptively misdescriptive cannot be registered unless that mark has become distinctive.3 A trade mark cannot be registered until it has been used in association with the goods, or services specified in the application.

Businesses adopt trade marks to distinguish their goods and services from those of their competitors. Trade mark law developed to prevent a competitor from misrepresenting its goods or services as those of another. A registered trade mark owner has the exclusive right to use the mark, and that right is infringed when anyone else sells, distributes or advertises wares or services in association with a confusing trade mark or trade name.4 Similarly, no one is permitted to use someone else’s registered trade mark in a manner that is likely to depreciate the value of the trade mark’s goodwill.5

Trade mark rights are territorial and once granted, no other business can use the same, or a confusingly similar trade mark on similar products in the same market. The Internet has added a new wrinkle to trade mark law by facilitating a global marketplace that crosses international boundaries.

Domain Names


Domain names are made up of at least two parts, the top level domain (“TLD”) and the second level domain (“SLD”). The TLD and SLD are separated by a period or “dot” (“.”). For example, in the domain name jurisdiction.com, the TLD is “.com” and the SLD is “jurisdiction”. All domain names in the same TLD are in the same registry. Each registry may authorize one or more registrars to accept domain registrations. There are commercial TLDs - .com, .net, .org, .biz and .info that are not geographically limited. There are also country-code TLDs (“ccTLDs”) that refer to a particular country. For example .ca is the ccTLD for Canada and .uk is the ccTLD for the United Kingdom.

The rules that apply to domain name registrations can vary between registries. For example, a domain name in the .com, .net or .org registry can be made up of any combination of 2 to 63 letters, numbers or dashes that has not already been registered. Domain name registrations in the .ca registry must be not less than two and not more than 50 characters. Domain names are not case sensitive. Domain names are now available which use characters in languages other than English.

The legal nature of domain names is not clear. Some view domain names as personal property while others see them as merely a contractual right. For example, in Zurakov. v. Register.com6 the Court was asked to define the legal nature of a domain name. Zukakov had registered the domain name laborzionist.com and then brought an action against the domain name registrar, Register.com, alleging that it failed to disclose the fact that, while Zukakov’s site was under construction, Register.com would post a “Coming Soon Page” at the site with banner ads for Register.com’s services. Zukarov argued that by registering the domain name, he obtained an exclusive property right and exclusive control over it. Register.com brought a motion to strike Zukakov’s claim on the basis that it disclosed no legal cause of action. The Court considered the legal nature of a domain name7 and concluded that Zurakov only had a contract, not a property right and that the service agreement with Register.com exclusively governed his rights to the use of that domain name. However, the case leaves open the possibility that a trade mark owner may have property rights in a domain name. In two Canadian cases, Molson Breweries v. Kuettner8 and Easthaven, Ltd. v. Nutrisystems.com Inc.9 the court suggests that there is property in a domain name. Recently, in Kremen v. NSI, (http://caselaw.lp.findlaw.com/data2/circs/9th/0115899p.pdf) a case involving the domain name sex.com, the 9th U.S. Circuit Court of Appeals found that a domain name was property an could be the subject of an action for conversion.

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