Help with name infringement

[goodkarmaco]

Hello friends, I am not a domain newbie, just new to this forum.

I own a name that is for the candy business. A very large nationwide candy business uses something simalar to mine. Lets say the huge company is called sweetlollipopshop.

Lets say mine is sweetpopshop. Now I live in a very popular summer beach resort town with a candy shop that is very well known here. Keep in mind this is a very small town. The candy shop in my town is called the popshop.

I am sure that they cannot get me on my name as it is not a knock off of theirs.

My question is when the summer tourist arrive can I go to my local paper (where this candy shop advertises also) and place a ad to order my candies online?
The ad will run something like we are famous for our homemade candies and go online for these summer specials at sweetpopshop.

The purpose to have them click on my ppc ads from famous candymakers. Does the local guy have any legal rights to sue me. Every town has lots of burger shops or whatever. What do you think?

MANY THANKS, Roderick

 

[MichaelV.]

that is a tough one since you are both selling the same product. unless he has a trademark on the term popshop, i dont think you would have a problem, but it could be kind of gray since your names are so close, he could argue that you are using your name, that is a lot like his to steal his business, in that case, you would have some problems

 

[jberryhill]

I am not a domain newbie, just new to this forum.

Don't worrry, we abuse the old timers here, too.

What you have here is a very specific concern in a fact-sensitive area of the law and not enough facts.

As these are hypothetical terms, you mention that others "call it the popshop". Trademark rights do flow from consumer perception , but originate with what the TM claimant uses as a trademark. Whether "popshop" is used there or elsewhere as a general term for candy shops, or whether the term "popshop" is distinctively and nearly exclusively used as a reference to that particular candy shop in that area.

Now..

The purpose to have them click on my ppc ads from famous candymakers.

It looks like there are two purposes afoot. Is the intent of the newspaper ad also to induce local readers to visit the website by causing at least some of them to think it might be the URL of what everyone seems to know is the particular "popshop" that they normally mean when they use the term? If that's the intent or even the effect of the newspaper ad, then there is an aroma of some form of unfair competition.

There's a difference between "popshop" and "burger shop", though, because something like "burger shop" might not be capable of acting as a distinctive term if it is generally understood to mean "any" burger shop. So, I wouldn't suggest reaching any conclusion about your particular circumstances on the basis of hypotheticals. The point, though, is to consider objectively whether the ad would generate at least some response due to consumer confusion as to the identity of the advertiser.

 

[Robert Allen]

Don't worrry, we abuse the old timers here, too.

Yer, i know, that is fun!

 

[goodkarmaco]

Good points

Many thanks for all the insights

Mvannote, o.k. he does not have any trademarks, checked into that.

J berry, they do not have a trademark and in this business hundreds of companies online use the hypothetical term sweet in their names. Its not really used as popshop though. My addition of sweet to this doesn"t get me off the hook?
Yes Berry I was going to try to capilize on their reputation so I will have to think about this a little deeper.

Many thanks for all your comments, Very helpful.

Roderick

 

[jberryhill]

Yes Berry I was going to try to capilize on their reputation so I will have to think about this a little deeper.

As long as that is the objective, there is isn't really a good way to go about doing that.

 

[goodkarmaco]

Makes Sense To Me

Little wiser now.

I think I will keep a low profile here on that name. Just keep cashing in on the ppc and maybe an online candy company will want to brand it as the name has all domain name markings of ca-ching that I look for.

Domain name memory recall
Domain name traffic
Domain name branding

I started a brick and mortar store and sold lots of different tourist items. Among the items besides sterling jewelry, gifts, plants, etc I started to carry some candy items.

Well this store thinks it can push me around and went to my landlord and the two of them are pretty controlling of the area, they came up with a plan to get me to quit selling candy. If I did not guit selling it I would have to move. My response was see ya, Sure its a hassle to pick up lock stock and barrel and move, but if I agreed to that how many other products would I have to run by the " good ol boy's club. So I got lucky and found a great landlord that I stayed with for years and years. He was glad I was with him as I had the only really visitors information center in this beach tourists area.
His goal was to promote this beach resort and he liked my strong customer base.

That relationship ended last year when they sold out to a very large timeshare condo for resort living. So I had to tear down my years work (including the building) and pack it all up.

Well domainers have a ace up their sleeve and that is domain ownership. I now own the name of the timeshare and the steady pay per clicks from that makes me feel a little better! By the way the name of the timeshare is a beach term, so no tm. there.

Thanks friends.

Roderick