James Yu writes that Digg sent a Ceast-and-Desist notice to digggames.com, a site that skimmed digg for Flash games:

But, why not stop there? If Digg is going to go after digggames, why don’t they also go after 80% of the sites on the digg tools list? Sites like Diggdot.us, DiggLicious, and Digg vs Dot would also be ripe for a takedown. At the extreme end, mashups would all be considered illegal, squashing all the creative juices that have made web 2.0 innovative and liberating.

If you look at the digg tools list (pictured left) it appears like something officially from digg and there’s no disclaimer saying it’s not affiliated with or endorsed by digg, unlike mydeathspace mentioned yesterday.

James has legitimate concerns, although if these sites are piggybacking off a trademark to promote their mashups, I’m not sure the courts would agree. It’s all too easy to villify the lawyers here as they are just doing their job. Or trying to anyway.

I’ve questioned mashups that scrape websites that don’t have APIs before, but mashups that use APIs and follow the TOS of the API are fine. Creating a mashup and then using a trademarked name in the domain for the project? Even if it’s a non-commercial project? Don’t know what the law says here. My layman guess would be this would be a trademark violation. Your guess is just as good, probably better if you have any legal training (I don’t).

I’ve never registered a domain with another site’s name in it. About the closest I’ve come is with my Gmail Talk blog as a third level that is hosted on blogspot. I created that blog as primarily a personal area to collect my notes on Gmail, not a business site, even though I did add Adsense to it awhile back. I even used one of those Google-like logo creators for the logo which means I’ve copied the likeness of Google. Hasn’t even been updated in 2006. It’s not a threat to Google’s trademark, but it could be violating their trademark on some level. Google hasn’t ever contacted me to complain and since it’s on their servers anyway they could take it down any time they wanted. Maybe they view it as a fan site, of sorts? Don’t know.

I’m not sure what the legal perspective is on using trademarks in your domain name but it seems to me sites like paypalsucks.com would have been taken down long ago if this practice was a clear violation.

I do realize that trademarks need to be defended so please stop before making that generic comment below. We covered that topic when Google protested its name being used as a verb. My problem with trademark law as a layman is it seems intentionally foggy. Law should be much more clear so that people don’t have to be in a position of protect and defend over unclear situations.

As a website owner I’ll likely continue not to register domains with trademarked names in them, but it makes me go hmm when there are so many cases out there where others have done the opposite, some sites of which I’ve linked to here like diggpuzzles.com on Hmm quickies #36.

Does anybody reading have a link or know of a source which specifically discusses if using a trademark in a domain name violates the trademark? A domain name can become a brand so I can see how trademark lawyers get itchy when they see third party sites using a trademark in the domain name, but is this a case by case basis or what?

Did this post make you go hmm?

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