Not without knowing more information, no. While probably the only thing I enjoy more than getting paid to do what I do for a living is not getting paid to do it, someone seeking legal advice is entitled to, among other things, confidentiality. That's really hard to do on a public message board.
If I went to a doctor and said, "Hey doc, a part of my body hurts, what should I do?" then the doctor is probably going to have a whole list of things that she would want to go through in order to diagnose what's wrong and what I should do. Me saying, "Well, let's say it is my toes, for example, what should I do?" isn't really going to help her out much.
But, what I can do, is to discuss general issues and things that I'd want to know about in the event that I was hired to actually, you know, help someone else make money. Because the only thing I enjoy more than making a living myself is watching other people make money.
So, let's dive in.....
Answer: Who knows. A short list of things that might be relevant include (a) whether someone has a trademark for "example", (b) what kind of a trademark it might be (this is a whole subject area, since trademarks can be inherently distinctive, arbitrary, suggestive, descriptive, or fit into a few special islands of relative distinctiveness on their own, like surnames, for example), (c) what "use" you have in mind, and (d) what jurisdictions you and the trademark owner(s) might operate in.
Aside from the degree of distinctiveness of the mark, I'm going to guess from the way the preamble is phrased that you might believe that a trademark must be registered in order to be a trademark, which is a common domainer misconception I have addressed quite a number of times.
So, to get anywhere in the vicinity of an answer to the first question, I'd want to know more than is stated in the OP, and I'd want to know the actual facts, since these things can be very fact-sensitive.
But, golly, someone might say, the OP says that "example.com" isn't being used and has been passed around for a while, etc.. Sure, that might be so, but there are also trademark owners who have a lot of domains they keep around and don't use for one reason or another, while the domain name that they DO use might be some ccTLD name. Why is "example.com" not being used (or, like some gambling domains, only resolves in some places and not others)? Who knows? I sure don't, and wouldn't risk my reputation, career and license on a malpractice claim by guessing wrong about whether some hypothetical trademark hypothetically exists in some hypothetical jurisdiction.
Absolutely, if some anonymous person wants to anonymously opine on a legal question based on the license they found in a crackerjack box, that's fine. But few lawyers are actually going to risk their property and livelihoods by throwing darts at a board blindfolded for nothing.
So, no, I can't answer question 1. Let's take a stab at question 2....
Okay, so I'm guessing that instead of not being used, the .com is redirecting to some service-providing site of some kind. To give just one example, at one point a representative of Verizon once told me that they had some 40,000 domains which they either recovered from squatters or defensively registered. I guess most of them forwarded to Verizon .com, so, sure, they probably had a lot of domain names that had one or more of their several trademarks in it, which they used as redirects. Lots of companies have more than one brand of product. For example, Procter & Gamble makes a bunch of different stuff and I would bet they have a lot of domain names that forward to some section of their principal Procter & Gamble website, if they don't have individual websites for each of their brand names.
What, if anything, might be the relationship or agreement between the .com and .net owners, or why, if I am reading this correctly, they are providing the same service without getting into a conflict, I would have no idea without knowing specifically what we are talking about here.
But, getting to the question of "Is it necessary to register a trademark for this domain?" I don't know how the other stuff in there relates to that question. Whether it is desirable to register a trademark depends on a variety of factors, but if I had to reduce it down to the simplest formulation of "should I register my trademark", then it's hard to think of two many situations where that would be an outright bad idea.
Surely, there are situations where, if you shouldn't be using it in the first place, then seeking to register it as a mark would attract attention of the kind you don't want, but I'm kind of puzzled by the question itself. Maybe I should back up and look a bit deeper into the "register a trademark for this domain" piece and point out that if you are using the domain name
AS a trademark (and the use is distinctive in relation to that mark), then you might do that.
Incidentally, what you might want to do with registration systems around the world, which provide different sorts of legal presumptions and have different requirements is an open question. In Europe, registration functions differently and affords different legal presumptions than in the US, for example. I don't know where you are located, and you don't say, so I guess I'm useless on question 2.
Certainly directing traffic from one place to another can be an active business use. If you think about it, that's most of what Google does for a living. May a business be actively using a domain name to redirect traffic? Sure.
That seems to be the jumping off point for the second question bundled in there which is a real chore to unpack, so I'm going to guess that by putting "active business use" in quotes, you may be referring to the "use in commerce" requirement for registration in the US. That the US has a "use in commerce" requirement is itself something of a shorthand expression for use
AS a trademark - i.e. as an identifier perceptible to consumers marked upon the goods at the point of sale in such a way as to permit consumers to distinguish the goods of one source from another in the relevant marketplace. When you look at the beer refrigerator in the store, you know that a red triangle is Bass ale and that a harp is Guinness stout, and you probably have an opinion about whether or how much you prefer one or the other. That's what we call the "goodwill" that inheres in the mark as it is performing that distinguishing function.
Now, I could make an "active business use" of something without it being a trademark. Let's say I have an egg farm. I wrote a short jingle about my egg farm. I can do one of two things. First, I might use the jingle in my commercials, and it might function to distinctively identify my brand of eggs. For example, there is a US TV network that a lot of people can identify from these three tones:
https://www.uspto.gov/sites/default/files/72349496.mp3
Or, I might find out that the hens like the jingle and they lay more eggs when they hear it, so I play it in the coop every hour. That's an "active business use" but it's only being heard by the hens, and not consumers in the relevant marketplace for eggs.
Maybe it's been a long week but the second question in there just leaves me puzzled. The "If not" refers back to "Is it unclear if (this or that)" and so I'm not sure what the defining condition of the second question is.... "If it is not unclear if this, then (something else)".
Simplifying the second question to "If I am using a trademark, then I am using a trademark" makes more sense. Whether the mark is also a domain name is beside the point.
For example, if you have the domain name "example.com" and it forwards to a website where you sell "Jim-Bob's Delicious Dog Treats" and the mark "example.com" does not appear anywhere on the website, then, no, you are making a "business use" of the domain name, but you are not using "example.com" as a trademark. Use of a domain name as a website address or some other technical function in support of a business doesn't make it a trademark.
In other words, if you are using a trademark, then you have a trademark. Whether the trademark consists of a domain name, your favorite color, a drawing you made, or a short song, doesn't really make a difference. It's a trademark if it is (a) perceptible to consumers making a buying decision in relation to the goods or services in the relevant market for those goods or services, (b) distinguishes those goods and services from ones originating with others in that market.
I know I spend a lot of time simply banging away on various definitions of "what is a trademark", but a lot of the discussions here are like walking into a room and asking people whether they like yams.
The problem with doing that is that if you are like me, then you might be surprised to find out that what people call "yams" are radically and entirely different vegetables, depending on your geographic and cultural background.
Show attachment 230302
But I do have a belief that if you can wrap your head around what a trademark
is, then a lot of questions answer themselves (at least within the generally US-centric context with which I am most familiar).
So, TLDR, I think I can sort of grasp what you are driving at in question 3 - "If no one else is using the domain name as a trademark, then if I use it as a trademark, do I have a trademark?" I'd tend toward saying
yes, as long as it meets the relevant conditions to function as a trademark for those services in the first place.
This exercise also points out the differences between what goes on in a legal consultation and posting some questions and saying "answer these questions", since it is a lot simpler in an interactive conversational environment to get to the facts that
I think are relevant to someone's issue, instead of questions that strike me as being along the lines of "If a train leaves Chicago at 4PM and heads west at 40 miles per hour, then how many pancakes does it take to cover a doghouse?" *
It's not simply being pedantic, since people can end up paying a high personal price for wrong answers based on misunderstood questions, and if those wrong answers came from a lawyer, then the lawyer can pay a high personal price as well.
But I hope something in there may be useful to you.
* (There actually is a more or less standard answer to this question and variations of it, and if anyone gets it, they will have my admiration for life)