From the Nolo eCommerce Center

You’ll often find that someone else has snapped up the domain name of your dreams – or even a name to which you’re legally entitled. Here are your options.

So you have a great idea for a domain name. It will make you millions and be the beacon by which an unprecedented amount of Internet commerce flows your way. You’re excited. You go to a domain name registrar to perform a domain name search and, you guessed it, the name you want is already taken. What now? Don’t worry, you have choices.

1. Use.net,.org,.biz or.info

If you’re like most businesses, you want.com at the end of your domain name. But as you may have surmised by now, many.com names are unavailable. However, the same choices may be available with.net or.org. Some domain name registrars will even prompt you with the.net,.biz,.info or.org choices after they tell you that your.com choice is unavailable. If you’re adamant about using a.com name, you’ll just have to keep searching until you find one that’s available. But if you feel flexible about it,.net,.biz,.info or.org may do just fine. However, read the caution note below to learn about the dangers of using a name that is already a.com name.

2. Change the Name Slightly

A domain name is reported as not available only if the exact name is already taken. For instance, if an availability search tells you that madprophet.com is already taken, you may find that “mad-prophet.com” or “madprophets.com” is available. If you are not wed to the exact form of your first proposed domain name, you can experiment with minor variations until you find an acceptable name that is available. But read the warning below for reasons to use caution when taking this approach.

Slight Changes to a Name Can Spell Trouble

The fact that a slightly different name is available, or that a name is not available as.com, but is available as.net,.biz,.infoor.org, doesn’t necessarily mean that you can or should use it. Using a domain name very similar to an existing one may result in trademark infringement – the violation of someone’s trademark rights. If you infringe someone’s trademark, a court might order you to stop using the name and pay money damages to the other domain name owner.

3. Buy the Name

Domain names are bought, sold and auctioned like any other property. If the domain name you want is being used on an actively maintained commercial website, chances are slim the owner will sell it to you. However, if the name is reserved but isn’t being used, you may be able to get your hands on it for a price you can afford.

You can buy a domain name in a variety of ways. You can look in online classifieds, contact the owner directly and make an offer, make a bid on an auction website (http://www.ebay.com, for example) or go through an online domain name broker, such as GreatDomains.com. At GreatDomains.com, the leading online domain name brokerage house, the average offer price for a domain name is $32,000 and the average selling price is $14,500. For a detailed discussion of how this particular brokerage appraises domain names, visit its website at http://www.GreatDomains.com.

4. Assert Your Rights if You Already Own a Trademark in the Name

If you are already in business and want to use your existing business name as your domain name, then you may have the upper hand in a dispute with someone who’s already using the name online. (Not every business name is protected by trademark law, however.)

Under trademark law, the first person to use a trademark in commerce is considered the owner. So if you used the name to market your products or services before the domain name registrant started using its domain name, you may be able to prevent that registrant from continuing to use the name.

If you are a trademark holder and want to challenge the use of a domain name, you will first need to decide on a strategy for going after the registrant. You currently have three choices:

Use the dispute resolution procedure offered by ICANN.    ICANN, the international nonprofit organization now in charge of domain name registrations worldwide, recently implemented a process called the Uniform Domain Name Dispute Resolution Policy (UDRP). This administrative procedure works only for cybersquatting disputes – that is, when someone has registered your name in a bad-faith attempt to profit from your trademark. Compared with filing a lawsuit, ICANN’s dispute resolution procedure is potentially less expensive (about $1,000 to $2,500 in fees) and quicker (just 57 days to resolution).

File a trademark infringement lawsuit.    If you win, the court will order the domain name holder to transfer the domain name to you, and may award you money damages as well. A lawsuit is always an option, whether or not you pursue ICANN’s dispute resolution process.

File a cybersquatting lawsuit.     If you win, you can not only get the domain name you want, you may also win money damages from the cybersquatter.

All of the options discussed above may sound interesting and most may even sound viable, but you might, in the end, just throw up your hands and decide to go back to the drawing board and make another list of names. That’s fine too. While we’ve offered some suggestions here, your greatest resource will be your own imagination. You might reach an unconventional agreement with the holder of a desirable domain name rather than meeting the stated purchase price. Perhaps a simple letter demonstrating your ownership over the trademark, with an offer for compensation or some other arrangement, is all that is needed to resolve the conflict. Be creative and the right solution will follow.

How to Find a Domain Name Registrant

To find the name and address of a domain name owner, you can use the WHOIS search service provided by NSI at http://www.whois.net. The WHOIS link is at the very top of the page and has a magnifying glass icon. Simply click the WHOIS icon and enter the domain name. Your search results will include a contact name, phone number, address and email address for the domain name’s owner.

Click here for related information and products from Nolo

© 2002 Nolo