Trademark & Google AdSense

w11guy · Oct 23, 2009

I own photoshopsoftware.com. If I put up a photoshop site with google adsense, will I get in trouble because photoshop is a trademark name? Also, am I likely to get in trouble with adobe photoshop?

south · Oct 23, 2009

w11guy · Oct 23, 2009

south said:
Yes.

Can you elaborate.

cache · Oct 25, 2009

it is obvious photoshop software is not owned by you.

marcorandazza · Oct 25, 2009

I would go further and say that you should drop that domain like a hot potato.

w11guy · Oct 25, 2009

ok, I get the picture, but I'm new to this so can someone elaborate. there are lots of websites around that have trademark names contained within them, but no-one seems to care. And is it wrong to have a trademark name in the dmain if you are reveiwing the product. It's obvious I'm not pretending to me photoshop. I don't understand the law in these cases so am just asking for an exlpanation. I'd be grateful if anyone can provide one.

draggar · Oct 25, 2009

It is all up to the TM owner - some don't care, some see it as free advertising, others are rather aggressive about defending their TMs.

Your domain is clearly targeted towards their software and it is a TM. the company in question does have the right to file a WIPO against you and you'll have a hard time defending it (plus I think they can be rather aggressive with "protecting" their TM). Even if you have no ads and make no money from the domain, they can still (attempt to) take it from you.

It is also about use - especially when it comes to generic terms. If you were very lucky and picked up Apple.com and used it to promote products in regards to the fruit (apple pie, apple tarts, apple cider, forums to discuss growing apple orchards, etc..) AND you kept anything computer related out of your ads there isn't a thing Apple (computers) could do about the TM.

south · Oct 25, 2009

Adobe is known to aggressively prosecute people for piracy. They also do defend their trademark : http://www.google.com/search?hl=en&q=adobe+trademark+violation&aq=f&oq=&aqi=

marcorandazza · Oct 25, 2009

ok, I get the picture, but I'm new to this so can someone elaborate.

I'll explain, but you're not going to like the answer.

there are lots of websites around that have trademark names contained within them, but no-one seems to care.

No, it isn't that no-one seems to care. The problem is, it takes $7.00 (or less) and an internet connection in order to create an infringing website. Therefore, there are an army of infringers out there, from 13 year olds who don't know any better, to big companies that have made a calculated risk that breaking the law is worth it.

On the other hand, if you have a trademark and you want to protect it, you have to hire a lawyer to go out and exterminate the cybersquatters.

You see the imbalance? This is like saying "there are lots of cockroaches in the city, and nobody seems to care." It isn't that nobody cares, its that the numbers are usually overwhelming. However, when the trademark holder gets you in his sights, and metaphorically smacks you with his newspaper, you WILL get squashed.

And is it wrong to have a trademark name in the dmain if you are reveiwing the product. It's obvious I'm not pretending to me photoshop.

Of course not! There is a concept known as "fair use," which exists both in copyright and trademark. It is not per se unlawful or wrong to use someone else's trademark if you are not using it under fair use. Here is a great example: http://photoshopdisasters.blogspot.com/. That guy uses the photoshop name to comment on uses of the product.

A negative example? YOUR DOMAIN.

Let me put it very simply.

You. Are. A. Cybersquatter.

I'm not saying that to insult you or to rain on your parade. But, under the UDRP and the ACPA, that's what you are.

Your website isn't a "website" at all. You've merely taken a pay-per-click page and merged it with an aggregator that scrapes the web for content that says "photoshop." You aren't reviewing anything, you aren't actually trying to share knowledge about photoshop. You are trying to attract people to your domain by using Adobe's registered trademark. 99% of the people who get there will say "dammit, another crappy cybersquatting site," and they will move on. 1% will click a link, thus making you a nickel in the process. You figure that if you have enough of these sites, you can make some passive income.

Really, it is a smart business model (on some levels). But, if Adobe's lawyers see it, they aren't morons. They'll see through the BS as surely as I did. You will then get sued and you will lose. If you're lucky, they will just file a UDRP and take the domain. If you are unlucky, they will file an ACPA against you and slap you with a damages and attorneys' fees award.

I don't understand the law in these cases so am just asking for an exlpanation. I'd be grateful if anyone can provide one.

Well, you got it. Now when Adobe sues you, they'll do a google search, find this conversation, and make it exhibit A to their claim that you were knowingly infringing on their trademark. If I were you, I would either dump that domain, actually develop something there (which will be more work than would be justified by the pennies the domain makes you), or get a lawyer (not me) to send a nice letter to Adobe stating "I screwed up, I registered this domain, here is the transfer code, please don't sue me."

I am certain that this isn't what you wanted to hear, but ... well, call it "tough love" kid. Better you hear it from me than from Adobe's lawyers.

ugh, typo above.... I wrote

" It is not per se unlawful or wrong to use someone else's trademark if you are not using it under fair use. "

I meant to write:

It is not per se unlawful or wrong to use someone else's trademark if you ARE using it under fair use (and are not using the mark as the honey with which to catch money flies).

w11guy · Oct 25, 2009

Thanks marcorandazza. That's a very helpful reply. I now understand the situation more fully.

Not that it matters, but I didn't use an aggregator that scrapes the web for content. These were paid for articles that were written by someone that uses Photoshop.

marcorandazza · Oct 25, 2009

You're welcome. I am sure it isn't what you wanted to hear... but hopefully I just saved you a big pain in the ass.

w11guy · Oct 26, 2009

marcorandazza said:
You're welcome. I am sure it isn't what you wanted to hear... but hopefully I just saved you a big pain in the ass.

Not what I wanted to hear, but at least I can make more informed decisions in the future. It's much appreciated.

urlurl · Nov 6, 2009

i have a mis-spelled domain i have parked. am i violation of any trade marks? to use an example (not mine) Toyote.com

marcorandazza said:
I'll explain, but you're not going to like the answer.

No, it isn't that no-one seems to care. The problem is, it takes $7.00 (or less) and an internet connection in order to create an infringing website. Therefore, there are an army of infringers out there, from 13 year olds who don't know any better, to big companies that have made a calculated risk that breaking the law is worth it.

On the other hand, if you have a trademark and you want to protect it, you have to hire a lawyer to go out and exterminate the cybersquatters.

You see the imbalance? This is like saying "there are lots of cockroaches in the city, and nobody seems to care." It isn't that nobody cares, its that the numbers are usually overwhelming. However, when the trademark holder gets you in his sights, and metaphorically smacks you with his newspaper, you WILL get squashed.

Of course not! There is a concept known as "fair use," which exists both in copyright and trademark. It is not per se unlawful or wrong to use someone else's trademark if you are not using it under fair use. Here is a great example: http://photoshopdisasters.blogspot.com/. That guy uses the photoshop name to comment on uses of the product.

A negative example? YOUR DOMAIN.

Let me put it very simply.

You. Are. A. Cybersquatter.

I'm not saying that to insult you or to rain on your parade. But, under the UDRP and the ACPA, that's what you are.

Your website isn't a "website" at all. You've merely taken a pay-per-click page and merged it with an aggregator that scrapes the web for content that says "photoshop." You aren't reviewing anything, you aren't actually trying to share knowledge about photoshop. You are trying to attract people to your domain by using Adobe's registered trademark. 99% of the people who get there will say "dammit, another crappy cybersquatting site," and they will move on. 1% will click a link, thus making you a nickel in the process. You figure that if you have enough of these sites, you can make some passive income.

Really, it is a smart business model (on some levels). But, if Adobe's lawyers see it, they aren't morons. They'll see through the BS as surely as I did. You will then get sued and you will lose. If you're lucky, they will just file a UDRP and take the domain. If you are unlucky, they will file an ACPA against you and slap you with a damages and attorneys' fees award.

Well, you got it. Now when Adobe sues you, they'll do a google search, find this conversation, and make it exhibit A to their claim that you were knowingly infringing on their trademark. If I were you, I would either dump that domain, actually develop something there (which will be more work than would be justified by the pennies the domain makes you), or get a lawyer (not me) to send a nice letter to Adobe stating "I screwed up, I registered this domain, here is the transfer code, please don't sue me."

I am certain that this isn't what you wanted to hear, but ... well, call it "tough love" kid. Better you hear it from me than from Adobe's lawyers.

ugh, typo above.... I wrote

I meant to write:

It is not per se unlawful or wrong to use someone else's trademark if you ARE using it under fair use (and are not using the mark as the honey with which to catch money flies).

marcorandazza · Nov 8, 2009

urlurl said:
i have a mis-spelled domain i have parked. am i violation of any trade marks? to use an example (not mine) Toyote.com

I couldn't give you a definitive opinion on that without a) you being my client, and b) looking at the actual domain name you own and how it is being used.

The owner of Toyote.com could have a legitimate use for that domain (at least I could imagine one). However, it isn't being used legitimately. That is clearly a cybersquatting site, and the owner of that site should be held liable. If you have a similar site, you should be too.

draggar · Nov 8, 2009

It's all on the usage. If you use it to profit off of someone else's TM - then it is cybersquatting.

Say I owned Windos.com (deliberate typing) and used it to sell software, MS Windows, and so on - then I would be infringing.

BUT - if I used it to promote stained glass, car windshields, hurricane proof windows then I am not infringing.

The same could be said for the actual windows.com domain - just be damn sure any ads that appear only pertain to physical windows (glass, etc..) and not anything to do with computers or software.

theinvestor · Nov 8, 2009

Ok so here's my question.

What if a trademark is being parked ...but the purpose of it being parked is because it is temporary until it gets developed? Let's assume no ad's from the TM are being used on the parking page?

Can that be justified as fair use?