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While trademarks protect indications of product source, copyrights protect literary and artistic works, and patents protect useful designs. While those concepts of intellectual property may be separable in theory, in practice many features of products may be placed in more than one category. The shape of a bottle may be eligible for patent protection, for example, but also may come to serve as a unique indicator of the manufacturer and thus as trade dress. Titles and character names from books or movies may also be protectable trademarks while the work as a whole falls under copyright protection. Especially in countries such as the U.S. where copyrights and patents eventually expire into the public domain but trademarks do not, drawing these lines can be very necessary but extremely difficult for lawyers and judges.
Unlike patents and copyrights, which in theory are granted for one-off fixed terms, trademarks remain valid as long as the owner actively uses and defends them and maintains their registrations with their jurisdiction's trademark registry. This often involves paying a periodic renewal fee.
Unlike trademarks, there is no "abandonment" in copyright or patent law. A copyright or patent holder may "sit on" his creation and prevent its use. Additionally, copyright and patent owners do not necessarily have to actively police their rights. However, a failure to bring a timely infringement suit against a known infringer may give the defendant a defense of implied consent or estoppel when suit is finally brought.
The advent of the Domain Name System has led to attempts by trademark holders to enforce their rights over domain names that are similar or identical to their existing trademarks, particularly by seeking control over the domain names at issue. As with dilution protection, enforcing trademark rights over domain name owners involves protecting a trademark outside the obvious context of its consumer market, because domain names are global and not limited by goods or service.
This conflict was more easily resolved when the domain name user actually used his website to compete with the trademark owner. Cybersquatting, however, involves no such competition, but instead an unlicensed user registering the trademark as a domain name in order to pressure a payoff (or other benefit) from the lawful mark owner. Typosquatters—those registering common misspellings of trademarks as domain names--have also been targeted successfully in trademark infringement suits.
This clash of the new technology with preexisting trademark rights resulted in several high profile decisions as the courts of many countries tried to coherently address the issue (and not always successfully) within the framework of existing trademark law. As the website itself was not the product being purchased, there was no actual consumer confusion, and so initial interest confusion was a concept applied instead. Infringing domain names were analogized to a sign identifying one store but falsely placed in front of another, in the hopes that customers will in the end not care that they were duped or will at least give up on trying to reach the right store.
Most courts particularly frowned on cybersquatting, and found that it was itself a sufficiently commercial use (i.e., "trafficking" in trademarks) to reach into the area of trademark infringement. Most jurisdictions have since amended their trademark laws to address domain names specifically, and to provide explicit remedies against cybersquatters.
This international legal change has also led to the creation of ICANN Uniform Dispute Resolution Policy and other dispute policies for specific countries (such as Nominet UK's DRS ) which attempt to streamline the process of resolving who should own a domain name (without dealing with other infringement issues such as damages). This is particularly desirable to trademark owners when the domain name registrant may be in another country or even anonymous.
Registrants of domain names also sometimes wish to register the domain names themselves (e.g., "XYZ.COM") as trademarks for perceived advantages, such as an extra bulwark aginst their domain being hijacked, and to avail themselves of such remedies as confusion or passing off against other domain holders with confusingly similar or intentionally misspelled domain names.
As with other trademarks, the domain name will not be subject to registration unless the proposed mark is actually used to identify the registrant's goods or services to the public, rather than simply being the location on the Internet where the applicant's web site appears. Amazon.com is a prime example of a protected trademark for a domain name central to the public's identification of the company and its products.
Terms which are not protectable by themselves, such as a generic term or a merely descriptive term that has not acquired secondary meaning, do not become registrable when a Top-Level Domain Name (e.g. dot-COM) is appended to it. Examples of such domain names ineligible for trademark protection would be "SOFT.COM" (merely descriptive when applied to a product such as facial tissue), or "BANK.COM" (generic for banking services).
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