On the mark and the domain.
A founder picks a brand, then discovers another company already holds the .com. The counsel offers an older question about names.
FOUNDER"I have bought the domain. I have made the logo. The name is mine."/q:1
COUNSEL"You have bought a string of characters and a picture. Neither is the name."/q:2
FOUNDER"Then what is?"
COUNSEL"The use of it in commerce, in connection with these goods, in this market, before anyone else."/q:3
⁂
FOUNDER"There is a company in Ohio with the same word. They make irrigation pumps."/q:4
COUNSEL"Then they are not your problem. The Lanham Act protects against confusion, not coincidence. A reasonable consumer does not confuse software with irrigation."/q:5
FOUNDER"And the one in San Francisco that does developer tools?"
COUNSEL"That one is your problem. They are the prior user in your channel. The .io is yours; the name, in your market, is theirs."/q:6
⁂
FOUNDER"In the Cratylus, Socrates says names belong to things by nature. Surely there is a natural fit between a word and a product?"/q:7
COUNSEL"Socrates pretends to say that. By the end, at 435, he allows that convention does most of the work. Trademark law is the convention. The natural fit is not the legal one."/q:8
FOUNDER"So I should change it."
COUNSEL"You should change it now, when it costs you a Wednesday, rather than later, when it costs you a customer base and a cease-and-desist."/q:9
⁂
FOUNDER"What about buying it from them?"
COUNSEL"Possible. You will pay a premium for a name a stranger picked first. The premium is the tuition for not having searched the register."/q:10
FOUNDER"And if I keep the name and the .io and just hope?"
COUNSEL"Then you are running a company on the hope that a senior user will never notice you. Which is the same as running a company on the hope that you will never succeed."/q:11
⁂
Coda. The founder renamed. The logo was reused with one letter changed; the announcement was pushed two weeks. The federal mark issued nineteen months later. The San Francisco company never sent the letter they would have been entitled to send.
— D. A., this 21st of June, MMXXVI.