Wednesday, July 20, 2022

Domain Names and Branding – What’s in a (Domain) Name?

In the internet age, a good domain name is a crucial part of any business’s branding strategy.

In a previous post on this blog directed at domain name owners, I covered the importance of domain names and identified some common domain scams. But what about new businesses that are just starting their branding? Ideal “.com” domain names can be in short supply these days. What is an entrepreneur to do?

Many businesses now make domain name checks part of their initial brand clearance efforts (and some will also look at social media handles on the most popular social media platforms as part of initial clearance). From a trademark law perspective, domain names and trademarks are not the same: domain names often consist of a trademark followed by a top-level domain or “TLD” (such as the use of the mark GOOGLE plus the TLD “.com” to form <>) or a trademark combined with a generic term followed by the TLD (such as the mark DELTA plus the generic term “faucet” and the TLD “.com” to form <>). There are some rare cases where the trademark itself incorporates a TLD, the most notorious example being BOOKING.COM, which the Supreme Court found to be registrable as a trademark in 2020.

Most businesses, though, will be looking for a domain name that incorporates their brand plus a TLD, in the shortest and easiest-to-remember way possible. Making domain name registration a priority during the clearance process ensures that a new business won’t invest heavily in a trademark, corporate name, or other marketing and promotional materials only to discover that no good domain name is available.

As a practical matter, checking out which third parties may have registered domains containing the proposed trademark can also identify potential infringement risks. For example, if a business in the same or a related industry has already registered a domain name containing the proposed trademark, this could be an indication that adoption of the proposed trademark could lead to conflict down the road. (Of course, such domain checks are not a substitute for trademark searching and cannot be used to “clear” a trademark for use or registration.)

If you have selected a unique term or combination of words as a trademark, a “.com” domain name may be available. This is yet another benefit of developing distinctive, unique trademarks: these trademarks are often more broadly protectable and less likely to conflict with prior users in the trademark context, and they can also make finding a good domain name easier.

What if the domain name you want is already taken? One option is to explore other domain names. If <> isn’t available, what about a domain name that combines your trademark with the generic name for your goods, such as <>? Or a verb, like <>? As more and more TLDs become available, businesses have also gotten creative with the TLD portion of a domain name. What about <>? <>? Or a longer, industry-specific TLD like <>? While “.com” domain names are generally regarded as the most “businesslike,” startups do sometimes use other TLDs in the interest of having a short, easy to remember domain name.

Another option is to try to purchase the domain name you want from the current owner. This is generally a very unpredictable process, however, and new businesses should have alternatives in mind before setting off down this path. For example, many domain names are registered, but not actively in use. They may display a generic parking page or not resolve to a website at all. In those cases, the most difficult part of the process may be locating the owner at all.

Due to changes in international privacy laws in the last few years and the availability of privacy shielding services, it has become increasingly rare to find owner information in the registration data or “WHOIS” record for a domain name. The WHOIS record can be a good place to start, however, and can be checked with domain registrars or at

Domain names in active use by another person or business usually don’t have the same initial obstacle of finding the right contact information, but the difficulty usually lies in putting forth an attractive offer. Prices for domain names can vary wildly, from the hundreds to hundreds of thousands or even millions of dollars. Prospective buyers will often do business research on a domain name owner to determine what size of offer might be attractive to them, and/or make an approach through an anonymous intermediary in hopes of avoiding unreasonably high counter-offers. Some people may not be willing to sell their domain names for any amount of money. In these cases, there may be no other option but to settle for a different domain name.

Entrepreneurs have a lot to think about from a branding standpoint these days and it isn’t just as simple as forming an LLC or corporation and starting to do business. Securing a memorable and on-brand domain name is one crucial step in starting up any new venture, and something that entrepreneurs should have in mind from the start.

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