"Good to the last drop." Golden arches. A black and silver rabbit silhouette. Instantly recognizable slogans, logos, and symbols that bring to mind products and services.

Intellectual property is an umbrella term often used to refer to trade secrets, patents, trademarks, and copyrights. There is a great deal of discussion about copyright issues and the World Wide Web. Less often discussed, and not as well understood, are trademark issues as they relate to websites.

Copyright is a form of protection provided to the authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. Copyright owners are given the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. The copyright protects the form of expression rather than the subject matter of the writing. Copyrights are registered by the Copyright Office of the Library of Congress.

A trademark is a "brand name", a word, name, symbol, or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. Trademarks may include logos and slogans. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks are granted by the U.S. Patent and Trademark Office (USPTO). Trademarks are renewable and may become more valuable over time.

A patent for an invention is the grant of a property right to the inventor. A patent grants the right to exclude others from making, using, offering for sale, selling, or importing the invention, but not the right to make, use, offer for sale, sell, or import the invention. Patents are granted by the U.S. Patent and Trademark Office. Patents are generally not an issue for websites.

Just as with copyrights, registration with the USPTO is not required to protect a trademark. Common law rights arise from the actual use of a mark. Generally, the first to either use a mark in commerce or file an intent to use application with the Patent and Trademark Office has the ultimate right to its use and registration.

Issues that often arise on the Web include use of confusingly similar logos, the use of a domain name that infringes on a previously existing trademark, and the correct way to reference other trademarks.

"Confusingly similar" logos

The Web is a graphical medium. Logos and pictures may call to mind a particular business or service even faster than the name or slogan. The "look" and "feel" of a websites are integral parts of its creation.

It is difficult to define when logos are so similar that they may create confusion in the mind of the consumer. Justice Potter Stewart's famous dictum, "I know it when I see it" is particularly appropriate in these cases.

A common test in trademark cases is whether the logos are so similar that a consumer could reasonably become confused as to which business is offering the good or service. The first part of the test examines whether the two businesses offer similar goods or services. The second examines whether the logos are so similar as to cause the consumer to become confused about which company he or she is dealing with. The company that establishes it used the logo first or registered it first may have the right to require the second logo be withdrawn.

This is a situation where diligence should be part of the design process. Designers may search the Web to determine if a similar logo is in use by a similar business. In addition, publications such as the Thomas Register (available in public libraries) show existing logos.

Domain names that may be trademark infringements

A domain name may qualify as a trademark or service mark when it is used in connection with a website that offers goods or services to the public. The name must be distinctive. Use of common terms, such as health or booksellers, may not be enough to create a distinctive name.

Suppose a site sells books and artwork coming from Brazil. Calling the site Amazonarts.com might be considered a "confusingly similar" name to an existing purveyor of similar goods, Amazon.com. The test is whether a consumer reasonably may confuse the two sites. The second site could use Amazon in another context, or to describe the site, but the name would need to be made more distinctive.

Courts have generally sided with the trademark owners in these disputes and ordered the domain name user to stop using the offending name, even when no goods or services were being offered on the website.

Before choosing a domain name, it may be useful to go to the USPTO's searchable database. The database lists all registered trademarks and all trademarks for which registration is pending. Using Google or YAHOO! to search for a proposed name would also be useful in finding whether there is a similar name with a similar purpose.

Cybersquatting

Many companies use their company name for their domain name. Some individuals and organizations began the practice of buying of hundreds of domain names with the intent of selling them back to businesses once those businesses began to set up websites. This practice became known as "cybersquatting."

For example, typing a domain name in a browser window may bring up a valid websites. If the domain name takes you to a websites that appears to be functional and reasonably related in its subject matter to the domain name, it may not be cybersquatting. There may be a case of trademark infringement, if the organization provides similar goods and services.

If typing the domain name brings up a blank page, a site under construction, or a page that seems to have no relation to the name, it may be a case of cybersquatting. In 1999, Congress passed the Anti-Cybersquatting Consumer Protection Act Businesses may sue to get their domain names back and possibly monetary damages. The Internet Corporation of Assigned Names and Numbers (ICANN) offers an arbitration process to win the name back without a lawsuit.

A related scam was recently successfully prosecuted by the Federal Trade Commission. An individual registered hundreds of names similar to those of existing domains, but with slight misspellings. Visitors ended up trapped in multiple popup advertising windows. The District Court barred the defendant from particpating in online advertising and ordered him to pay back over $1.8 million.

Correct use of trademarks

Improper use of another business's trademark in a website may also cause legal problems. Use of the logo may make it appear as though the business is sponsoring the website. If such is not the case, there may an issue of trademark infringement.

In general, websites should be very careful about including other company's logos. It is advisable to obtain permission first. At the least the site should include a reference that it's a registered trademark and disclaim association as appropriate.

Meta tags

Although meta tags are not seen by website users, Web search engines use them as an aid in indexing sites. Inserting a rival business's name in a meta tag in hope of diverting some surfers may be an improper use.

In one interesting case, a former Playboy Playmate created her own website. She used those terms in her meta tags. The court held that that was a permissible use of another company's trademark. She used the terms to describe herself properly for indexing purposes. The court found it persuasive that the pages had visible text that disclaimed any connection with Playboy Enterprises.

Conclusion

This short overview indicates some issues that may be raised under trademark law for websites. As part of the investment in creating a name, "look," and "feel" for a website, efforts should be made to be sure others' trademarks are respected.

Useful Resources

U.S. Patent and Trademark Office: www.uspto.gov
The Internet Library at http://www.phillipsnizer.com
NOLO Self-Help Law: www.nolo.com
Bitlaw: www.bitlaw.com
All About Trademarks: http://www.ggmark.com