Copyright Question

stevef1fan · Nov 11, 2009

Hi everyone,

Forgive me if the answer to this question is obvious but I just wondered.

If I have a shop that sells xbox 360 games, for example, and so I build it on the name Xbox360Games dot org dot uk (apologies if you own this name !), is that copyright infringement because it has xbox360 in the title ? Even though I just sell the games and aren't trying to misrepresent anyone.

Or Xbox360forum etc. etc. etc.

- in other words, no trade names in domain names ?

Just wondered if some-one could perhaps explain this situation.

Again, apologies if this is a dumb question !

Thanks,

Steve.

springer · Nov 12, 2009

Unlikely that the domain will infringe copyright as it is too minimal. You can however infringe a trademark, of which XBox 360 is.

stevef1fan · Nov 12, 2009

Thanks for that.

So, if I own Xbox360Games or Xbox360Forums and I don't have any 360 logos on my site or try to misrepresent in any way, I simply sell or talk about their games, is that a trademark infringement ? Are they within their rights to have that site taken down and the name removed ?

In other words, is there no value in domain names with trade names in them ?

Despite massive exact match for terms such as 'xbox 360 games'.

Thanks again.

Steve.

Skinner · Nov 12, 2009

They are well within their rights as passing off. Would it be reasonable for a sane man in the street to assume the site was owned by MS ?

soon as you put advertising on their BAM they'd vaseline you up, or any revenue generation they'd do you.

The forum is possible long as your not making money.

stevef1fan · Nov 12, 2009

Thanks Skinner. I suspected as much.

I'm aware of the launch of the new xbox natal platform next year, so regged xboxnatalgames, natal forum, amongst others.

What should I do with these names ? (apart from perhaps hide down a large hole !)

Even with a disclaimer making it quite clear that you are not affiliated to MS in any way, they'd still have you ?

Cheers.

Skinner · Nov 17, 2009

Anyway you slice it, dice it, disclaim it, you can't hide from the copyright issues.

The only way you can use them is in a class they haven't TM'd.

Do Xbox Natal some kinda preggo porn is about it, I'd just cancel them an cut your losses, MS are known to be quite brutal.

GreyWing · Nov 17, 2009

This has already been ruled on according to the authorities in this matter.

Have a search for volvoparts.com they won their case against volvo. So yes it can be ok, but if you put the volvo logo up there then you are playing with fire.

But in theory according to that ruling you are ok.

Skinner · Nov 17, 2009

You should try to say that to the Italian Stallion car company

Surely if you put aff links to XBOX consoles/games, and photo's of xbox game covers then you'll get nailed, as there will be MS/XBox logo's everywhere, and passing off would then be an issue ?

I think the majority of times they win simply because their have a roll of crisp £100 notes in their back pocket, so they run you out on legal costs.

stevef1fan · Nov 17, 2009

Interesting stuff guys.

I see where you're both coming from. Thanks for the Volvo reference, GreyWing. I found this interesting quote with regards to that -

“If trade mark owners wish to prevent the use of their marks by authorised or unauthorised resellers in domain names, they should seek recovery in classic trade mark infringement or dilution litigations. In the absence, however, of some element of illegitimacy, they should not use the Policy to prevent uses that ICANN deemed to be legitimate, including the use of domain names in connection with the bona fide offering of goods and services.”

- I guess it's where you draw the line of legitimacy ! Skinner, I see where you're coming from re. affiliate programs with pictures of games with logos - would these go in a section clearly marked 'Classifieds' ?

It seems, in theory, it's perfectly possible to set the site up, without infringement. In practice, it sounds like it could be alot of hassle - walking a pretty fine line.

It's beginning to sound like affiliates are stuck between a rock and a hard place and it doesn't just stop with trademark names.

I was just reading about some rule which is apparently going to hold affiliate program managers responsible for inaccurate claims made by some affiliates. ie. 'cheapest hair products', 'best loan rates' etc. If that's true, in today's litigious society, we're all doomed - as no program manager would be foolish enough to leave themselves exposed to the perils of an unregulated salesforce. The outlandish claims of the odd rogue affiliate eager to make a few quid quid spoil it for every-one....

Here's a link to the article. Is this really true ??? -

http://www.michelfortin.com/affiliate-marketing/

Skinner · Nov 17, 2009

I feel the key point in that quote is "including the use of domain names in connection with the bona fide offering of goods and services.", this is what the italian stallion used, because bona fide according to them was if they authorised you to sell their products.

Like Honda-Manchester or Strattstone-Ferrari they are authorised sellers, for example.

Its been quoted in DRS that affiliates/mini-sites/mfa are legit methods most of the Toth (sorry bud urs was the last one I readD) cases mention that.

Personally that first DRS is like a black plague mark on your head, and for the sake of a few quid, I wouldn't risk it.