At Trademark Prospector we often get asked, “Can You Trademark a Website?” The answer is, it depends. Whether a website can qualify as a trademark depends on many factors.
Factor 1: Are You Using the Full Website Name as a Brand Name?
Recently, in a case by Booking.com before the U.S. Supreme Court, the Court explained that whether a website can be a trademark depends on how the website is used. If the website itself, such as “Booking.com” is used in full as the business’s actual Brand Name, it is more likely that the website could qualify for trademark protection.
Factor 2: Are the Website Terms Unique or Just Descriptive?
Some website terms are very unique, think “Yahoo.com,” whereas others describe the thing or product they are selling (Ex: travel.com for travel related services). When terms in a website are just descriptive of the services or products that they are selling, it is much harder to get trademark protection. For instance, “Booking.com” was only allowed trademark protection because it could show “secondary meaning.” This means, that Booking.com had to first utilize the trademark for five years, then, go out of its way to get expensive surveys and make an effort to persuade the court that the public recognized the website as a brand name and not as a generic term.
Factor 3: Repetition
Repetition is required to change a website from a website to a trademark of the Company. A trademark of a Company is something that is used repeatedly. The repetitive use creates the association in the mind of the consumer that when it sees the website, it knows exactly which Company is the producer of the goods or services provided or sold there. If you want trademark protection for your Company’s website, you must use the full site repetitively to create an association between the website and the Company in the mind of the consumer.