Using someone else's trademark in your domain name is a risky proposition because courts do not necessarily extend the same protections to domain names as they do to commentary, criticism, and news reporting. Nominative Fair Use: The nominative fair use defense protects your ability to use a trademark to refer to a trademark owner or its goods or services for purposes of reporting, commentary, criticism, and parody, as well as for bar towels comparative advertising. Trademark law does not let a trademark owner exert its trademark rights to stop news reporting about it or its products or services. As with news reporting, using a logo to illustrate or liven up criticism or commentary is probably OK from a trademark perspective. The issue of logos comes up with commentary and criticism as well. As with news reporting, courts recognize the important First Amendment values at stake and usually deny efforts by trademark owners to encroach on legitimate commentary and criticism. There are several legal bases for this result: there is no risk of confusion between the news source and the trademark owner; nominative fair use protects this use of the trademark owner's mark; and the federal dilution statute expressly exempts "news reporting and news commentary" from a dilution claim.

Use of the trademark owner's mark in a domain name is more risky, but you may reduce this risk by including some critical remark like "sucks" in the domain itself. There are several legal bases for this result: there is no risk of confusion between the commentator and the trademark owner, and nominative fair use may protect this use of the trademark owner's mark. Early on in the development of Internet law, many cases held that websites could not use a company or organization's trademark in a confusingly similar domain name, even if the website accessible under that domain name criticized the trademark owner, and its content made clear that it was not sponsored by or affiliated with the trademark owner. The court did not treat the domain name as separate from the underlying website, and so it dismissed the entire dilution claim. This may make it harder for you to gain the attention of Internet users trying to find the trademark owner's official website, but this may be the price you have to pay for more security from a trademark claim. Again, a prominent disclaimer making clear that your site is not "official" and providing a link to the trademark owner's site may help your case, but is not necessarily foolproof.

One way to help yourself avoid trademark liability is to include something in the domain name itself that makes it clear that you are criticizing or commenting on the trademark owner, such as a "sucks" designation. Domain name disputes often involve cybersquatting claims under the Anticybersquatting Consumer Protection Act. For details, see the Cybersquatting section. Gripe site cases often involve cybersquatting claims, so you will want to look at the Cybersquatting section of this guide for additional information. Courts impose three requirements on defendants who want to take advantage of the nominative fair use defense: (1) the trademark owner, product, or service in question must not be readily identifiable without use of the trademark; (2) the defendant must use only as much of the mark as is necessary to identify the trademark owner, product, or service; and (3) the defendant must do nothing that would suggest sponsorship or endorsement by the trademark owner.

When registering a domain name, you may want to include some term that makes clear that you are running a fan site, such as a "fans," or you may want to avoid the trademark altogether. However, there is a new trend in the cases towards allowing "gripers" and other critics to use domain names that are nearly identical to the trademark owner's trademark, so long as the underlying website does not confuse Internet users into thinking it is affiliated with the trademark owner and it does not engage in commercial activity. The reasoning was that a critic has no free speech right to confuse Internet users into thinking that they are entering someone else's website in order to expose them to a critical message. This section gives some guidance on how the free expression defenses may apply to your activities. First Amendment Defenses: Courts have recognized a number of additional "First Amendment" defenses in particular situations.