Legal Question in Intellectual Property in Indiana

Wanting to get the opinion of the masses. A few people may have heard of http://failblog.org, but I run a decent little site called http://dailyfailblog.com

I contacted the company that did the iPhone app for the cheezburger network (MC Development) and he reported my site to Ben Huh, who says they now have a trademark on FAIL BLOG and that I will need to surrender my site to them.

Yes, their site is bigger and better than mine, but I like the community I have built around the site and would like to continue to keep it going. My basis for the keeping the site (which I would pry have to battle in court about) is this -

Under ICANN rules (the UDRP), you may have to surrender your domain name if the following three conditions are satisfied:

(1) your domain name is identical or confusingly similar to your opponent's;

(2) you have no legitimate right or interest in the name (in other words, you are not using the name to conduct a bona fide business or for non-commercial fair use purposes); AND

(3) your name is registered and used in bad faith. (which it wasn't even trademarked when I registered and used the name fail blog in my domain name to describe the type of content that the site contains)

# Fair Use

There are two situations where the doctrine of fair use prevents infringement:

1. The term is a way to describe another good or service, using its descriptive term and not its secondary meaning. The idea behind this fair use is that a trademark holder does not have the exclusive right to use a word that is merely descriptive, since this decreases the words available to describe. If the term is not used to label any particular goods or services at all, but is perhaps used in a literary fashion as part of a narrative, then this is a non-commercial use even if the narrative is commercially sold. (This is where Daily FAIL Blog would be used, as fail blog on the internet now describe sites that show people failing at different things. Other fail sites use the term fail blog to describe these types of sites as blog is just how the content is displayed and fail is the meme of the internet that it is used at)

2. Nominative fair use

This is when a potential infringer (or defendant) uses the registered trademark to identify the registrant's product or service in conjunction with his or her own. To invoke this defense, the defendant must prove the following elements:

* his/her product or service cannot be readily identified without pointing to the registrant's mark

* he/she only uses as much of the mark as is necessary to identify the goods or services

* he/she does nothing with the mark to suggest that the registrant has given his approval to the defendant

This is my first site I have ever started and the stats are pretty solid for the site (roughly 1500 uniques a day). I don't make a profit off of the advertising at this time. Many other sites label themselves "fail blogs" including http://epicfail.com, http://shipmentoffail.com, and even http://failblog.net just to name a few. I believe the basis of the trademark is actually shaky on this one, as it describes the meme and type of delivery and not necessarily the "famousness" of the brand name which they are trying to use as a basis for trademark infringement.

Oh yeah here is the trademark info for FAIL BLOG - http://tarr.uspto.gov/servlet/tarr?r...entry=77709571

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