The use of HOT PROPERTY as a blog name by both Business Week and by RealtyBaron, prompted The Realtygram Blogger to ask: to what extent can similarly named blogs can coxist? Micropersuasion picked up the ball and impliedly asks: should blog owners be seeking trademark protection?
There seems to be no compelling argument why, as a class, blogs aren’t analogous to magazines or series of newspaper columns, in that they constitute the provision of information services eligible for trademark protection. The fact that blogs do not charge (or that many do not accept advertisements) would not be relevant as to whether the services are ‘trademarkable.’
A blog (like other forms of online information) would have to contain some value-add and do more than merely advertise the ‘primary’ goods or services of the trademark owner, for it to constitute protectable services.
As to whether two blogs could co-exist with the same name, without speaking to the precise example given above, the analysis would be the same as to whether any other goods or services could co-exist under similar, namely the multi-factorial likelihood of confusion test. The three most important factors would be similarity of the marks; similarity of the goods/services and similarity of the channels of trade.
On the whole, as Internet users have grown more sophisticated, courts have as well, moving away from the early-90’s thinking that the Internet was a single monolithic channel of trade.
So can you read the wrong blog by mistake?
There are numerous ways of arriving at a blog and some (such as arriving by hyperlink) seem confusion-proof. However, given that users sometimes pick blogs to read from lengthy blog-rolls or other lists or directories sorted by title, it seems possible that if there were identically named blogs, you could wind up on a blog other than the one you were seeking. How long you lived under this misapprehension would be determined by a variety of things, for example if what you were looking for had nothing to do with what you saw.
A thorny issue that affects this and other matters of mis-directed web traffic, is the doctrine of initial interest confusion, which may impose liability even if confusion is dissipated fairly quickly. I’ll merely state that Initial Interest Confusion doctrine is controversial, and I wouldn’t worry about it all that much in the case of good faith name collisions between blogs of unrelated subject matter.
Remember that confusion among readers may not be the only type of actionable confsuion. What if, for example, a website adopted a name similar to ENDGADGET, and solicited advertising for a website about electronic consumer products?
So should you file for trademark protection for your blog title? Well, are there plausible scenarios where you would be damaged by the third party adoption of a confusingly similar name?
How do you obtain trademark protection? You could start with the U.S. Trademark Office. Also, I happen to be in that line of work (marty at schwimmerlegal dot com).
A final point: if your blog is, for example, a review site named “Joe’s Unofficial Blog About [Famous Trademark]’s Products,” you are best off not filing for trademark protection of precisely that name.
ADDENDUM: Prof. Goldman (I’m tired of linking to him) makes the point that group blogs raise issues of who owns the name (and the copyright, for that matter). This is likely one of those things that no one fights over until it’s apparent it’s worth something. As Groucho said, loves goes out the door when money comes innuendo.