Print

Please login or register.
1 Hour 1 Day 1 Week 1 Month Forever
Login with username, password and session length

[Jenni O'Toole]

My question is simple, but has a long story.

Back in May of 2002 I created a website called "PixelScripts" and put it online. First hosted at diaryland, then tripod, and now finally at jennithepirate.com.

Well, just a few days ago I came accross an e-company called "PixelScripts". I was shocked, and begin to investigate.

As it turned out, the company's domain was purchased September 2003, and the owner, "Jeff", claimed the copyright on the website to be 2003.

So, I came first.

I wrote Jeff a letter asking him to not call his company PixelScripts because it was a name that I owned. He, in response, told me that his company did not have to do that, and he was in the process of getting a trademark for "PixelScripts".

Once that was complete, he said, my website would be in violation of his copyrights, and I would have to stop calling my own website "PixelScripts".

This makes me nuts, but without money there is simply nothing I can do about this. It's just the way it is. So, here is my question:

If Jeff will own "PixelScripts" can I change the name of my website to "PixelSc®ipts" like I now want to?

Will his trademark only cover the letters "pixelscripts"?

Thanks for your time!

[JimIvey]

You seem to be confusing copyrights and trademarks a bit.  Copyrights protect against copying some original work of authorship.  If you copy his website and use it as your own, that could be a copyright violation.  But you can't copyright something as simple as a single word.  

What you're referring to mainly is a trademark, a mark used to identify a provider of goods or services.  Domain names or webpage titles are not necessarily trademarks.  And trademarks can be used in ways other than webpages.

One thing I don't see in your situation is when Jeff first used PixelScripts as a trademark.  Purchasing a domain name is not necessarily indicative of the first use of a trademark.  He could have been distributing software or other goods/services for long before that.  I don't know.  The copyright on the website doesn't tell us either.  That's simply the date the website was published.  The trademark could have been used earlier.

For now, you can go on using PixelScripts until Jeff sues you.  During his application for registration, there's a time and opportunity for people to oppose his application.  Feel free to file such an opposition if you really think you're the first user of PixelScripts as a trademark.  

Of course, that's not free.  Courts tend to let the status quo persist unless someone makes a fairly strong showing that the court should interfere, and that takes effort and, therefore, money.

To get to your questions, the answer to the first is "probably not."  To avoid infringement of a trademark, you have to be sufficiently different from the mark that people won't be confused as to whether you're referring to your site or his site.  That just seems too close to me.  But then, that depends partially on the answer to your second question.

To answer your second question, we won't know until the trademark is registered.  It depends on a number of things including who else is using similar marks.  If he's lucky, he can get protection for any variation of the word.  If there are other uses of the same word (that the Trademark Office finds and cites), then it's likely that he'll only get protection for some stylized version of the word or the word in combination with a design of some sort.

I hope that helps.

Regards.

[M. Arthur Auslander]

Dear Ms. O'Toole,

E arly L egal A dvice I s N ot E xpensive™. The earlier you get the whole picture, the easier it is to do a good job or retreat before you have spend a fortune. The does not mean that you will make money but it is the best economic risk that you can take. We call it a Reality Check®.

M. Arthur Auslander  
Auslander & Thomas-Intellectual Property Law Since 1909
3008 Johnson Ave., New York, NY 10463
7185430266, aus@auslander.com
ELAINE's Workshop®
E arly L egal A dvice I s N ot E xpensive™
Reality Check®