Copyright Question

[cd34]

Here's a very generic take on the issue:

sextube.com, Record created on 10-31-2004
sextube trademark registered, December 11, 2007
sextubeland.com, Created on: 22-Sep-09

Would sextubeland.com have profited by the similarity to the name that was trademarked? Was sextubeland.com registered in order to deceive the surfer into thinking they were in sextube, or, was the site registered to capture search engine keywords in order to generate traffic from the similarity of the names?

As the sites http://sextube.com/ and the cached site that google has: http://74.125.47.132/search?q=cache:...ient=firefox-a

appear to be somewhat similar, a judge would probably find that there is enough potential that your site may have confused surfers and diluted the value of his trademark. Since both sites are very similar in scope, in the same general market, I believe a judge may find your actions to be contributory to trademark infringement.

Imagine if you opened a restaurant called McDonaldland (which is trademarked, but, pretend for now that it isn't). You use the golden arches, paint your restaurant in the same signature colors that McDonalds uses. I don't believe you would win that case either.

Ask your attorney whether you have a case to keep the domain, and ask for a reasonable estimate for the cost of fighting this. Bear in mind, losing this case means that you may have to cover the opposing attorneys fees as well.

The only winners in a trademark dispute are the attorneys. If they file an injunction, you are forced to take the domain offline until the case is heard - which means you cannot generate traffic/income from the site. If they win the case, they could go as far as looking at your income tax statements and books to determine how much revenue sextubeland.com earned, and could file to capture that revenue. If sextube.com decides to file with WIPO, you've got to pay a fee and agree to binding arbitration and could potentially lose the domain. Win or lose, that fee is kept by the arbitrators. Potentially losing the domain is only part of the issue. The potential lawsuit for trademark infringement is the costly part.

Regardless of what you read on the web, the ONLY source you should trust is the attorney that has agreed to represent you.

Having been indirectly involved in a very similar case with a client having a domain including aol, I can tell you that they spent about $15k on attorneys fees before relinquishing the domain.

Talk to your attorney, get his opinion and make a decision whether to fight it or not. Whether the trademark should be overturned or not is a secondary issue. I believe that a trademark on the term sextube would be infringing on youtube. But, as Toby says, that is also going to be a costly battle.