Milton Mueller wrote:
>Note that there are hundreds of FM radio stations in the US who are on
>"97.x" on the dial and would desire to have the domain name "97.fm" Now I
>want te TM lawyers among us to tell us why the fact that I may be confused
>by this makes it a trademark violation that allows any one of them to be
>sued by the others.
It doesn't. Confusion is only one of the required elements (and is not
always required under the law in the European Community).
It is unlikely that any radio station would be able to register 97fm as a
trade mark for their services, because it would not be distinctive, which
is one of the basic requirements of a trade mark. By definition if many
others in the same line of business use the mark in the course of trade it
is not registrable. Even if by some aberration on the part of the Trade
Mark Registrar someone succeeded in registering it, they would be unable to
enforce it, since any other user would have the defences probably both of
prior use and that the mark was invalid.
Nor would an action lie for passing off (common law trade mark
infringement), since there would be no misrepresentation.
However, although any one of them could use 97fm to refer to their service,
only one of them gets the domain name 97fm.com.
Clare Wardle
My views are my own and not necessarily those of my employer or colleagues.
