Using a Very Similar Domain Name to the Developer (Ontario)

Private Equity vs. Venture Capital: Similar but Mostly Different -  ClearLight Partners

Question:

A condo developer in the area commenced marketing a new condo project. I have a very similar name. Their condo project doesn’t get the same number of hits as I do, and I rank #1 on Google for their project.

They want me to change my domain. Any issues here?

Answer:

You should be aware that there is an action in law known as “passing off”. If you have “their” name, but you just beat them to the domain registration door, and their leads go to you, then there are some potential risks.

If a consumer would think that, in dealing with you, they (the consumer) are really dealing with the developer, then the developer is entitled to all your profits.

So, this becomes risky. You might want to be similar but different. If you are too similar, you owe them all your profits, which, of course, doesn’t make any sense.

The action based in tort law is in a sense “impersonating” someone else and “stealing” their business. Issues relate to your ability to do ordinary business using ordinary language and commonplace words. Their case increases in strength if they have used unique words and if they have them trademarked, or if they can establish market dominance and usage over a long period of time.

Two good examples would be General Motors and Xerox. You would never be able to trademark the name “General Motors” today. There’s nothing unique in any way and it would preclude others from using simple words. But, General Motors’ market presence gives them the power to preclude others from using that name today. Interesting that Xerox was just a “made up” name. It was unique right at the outset. So, it could preclude usage right from the outset.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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