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[antiques67]

Thank you, I understand,nominative means you can't describe it at all without using it's trademarked name.

The wedgewood pottery isn't my domain, just a hypothetical, sorry should have made that clear.

[JSonnabend]

Just to clarify a little, if you are selling vintage Wedgewood china, you could call it just "china", but you would also be allowed to call it "Wedgewood china" because that's what it is.  You can call a cola a "Coke" as long as it's not a Pepsi, so to speak.

- Jeff

[Kaitlin]

If the goods are in fact “previously owned”, there is usually nothing wrong with saying “I sell used Coke(R) bottles “ or “used / refurbished Xerox(R) machines” (but note that R in the circle), or with offering a used Honda, no (R), for sale in the appropriate section of the NYT. 

Does anyone else here object to companies implying they have a right to take legal action against others who do not use the circle-R with the mark when they refer to the company's registered trademark? 

Perhaps the law has changed without my noting it, but I don't believe this was ever a legal requirement for other people who are merely referring to the product by brand name.  This is the job of the trademark owner. 

Trademark owners can strongly urge others to appropriately use their mark and display the circle R, and probably have a tort action if they can show the other party is deliberately failing to do this out of an intent to damage the company by misrepresenting the status of the company's trademark or by encouraging its use as a generic term, but can a company actually have the right to *insist* that someone else use the circle-R in every instance when they refer to the company's mark?  I don't think so.

(I get so sick of seeing articles written about federally trademarked goods which keep putting the circle-R after every darned reference.  )

[antiques67]

The real domain hasn't been used (I learned that immediately on this board - thanks).
Using a trademark name in a domain seems like new territory that hasn't been charted much. I know there is the walmartsucks which was allowed, but that was opinion. When a website is purely commercial and has a version of a trademarked name in it's URL, that seems to be much more vague in allowance. Has there been any precedence on a commercial level for this use?

[JSonnabend]

There are cases discussing the use of marks in domains in connection with sales of genuine goods.  Some courts (including California, I believe) have found that not all "nominative" uses of a mark in domains is allowed, but those cases were essentially use, e.g., of "honda.com" by a dealer as opposed to Honda corporate.  Even those cases generally found permissible uses like the one you described.

That said, you have to understand that in the law, very few things are black-and-white.  Lawyers are trained to spin the smallest of facts into case-changers.

Kaitlin, I agree.  I see it in, of all places, articles on trademarks written by tm attorneys.  "Yes, Eugene, we see you know how to make the circle-R in Microsoft Word^®, and we're very impressed."

- Jeff

[Kaitlin]

Kaitlin, I agree.  I see it in, of all places, articles on trademarks written by tm attorneys.  "Yes, Eugene, we see you know how to make the circle-R in Microsoft Word^®, and we're very impressed."

- Jeff