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1. Check to see if the trademark is even taken. If not, register it. It'll cost you about $325 (assuming you file online and this is in the US) for at least one class (but that's all you need for now. If it is already taken, change your company name). It's not going to end well if you keep the name and the trademark exists.

2. Assuming its not trademarked, I can't say whether or not you believe the .com is worth the price or not, whether you'll even succeed or not, but I have enough proof from my own set of domains that the lost traffic to a .com can be staggering if you grow. Personally, I would try to get the .com if you have the money to spend (or wait). That said, keep negotiating on price.

All told, you guys should be more concerned with whether you can get traction and if the idea even works. If not, it might be a waste of time and money.

You make a good point about traction, I think we're too worried about this right now. Regarding the trademark, it isn't taken. My main question was, can we even take it if they are also using the same name? They likely haven't sold anything under the name, it's just a website in early stages of development (I know this because they seem to be developing and updating it LIVE under the root of the domain so I can just connect to it and see).

I don't think the .com is worth it at this point. My sentiment since this summer has been that we'll be able to afford it once we need it. Until we have funding/an income, we can make way with a .net and maybe a "hacked" .com (see choxi's comment)

My advice is register the trademark if it hasn't been done by the other party. Its subjective of when you guys first had it in use if nothing else.

You might also want to consider checking the username isn't taken for FB page, Twitter, Youtube, etc... That's also something to consider.

Lastly, just understand that if you wait on the .com, prices can go up due to the fact that you guys have success possibly. Although I agree that now isn't the time to do it if you can hold off.

Good call, we have record of us using it as early as June, though it's been pretty private the whole time. The name generally is available on websites (Fb, Youtube) although the Twitter is taken and dead (something in Korean).

Thanks for your advice. We're looking into a Trademark registration and are holding out on the .com.

This sounds like a distracting Unicorny problem, how about you guys finish what you need to do, launch, see if gets any traction and then worry about this.

Unicorny -- something so early in the planning stages that it might as well be imaginary.

Well we're closer to launching than we are to the planning stages, but I see your point. I guess we were just trying to cover our bases so we don't get screwed out of the name in the future.

What's in a name? that which we call a rose By any other name would smell as sweet; [Shakespeare]

The name is a far less important asset than whatever it is your startup will do.

The last remark basically killed it.

Trademarks work like this: http://www.youtube.com/watch?v=o4zwq6MEaKw&list=UURyDduT...

Ditto. It was ok until you mentioned the trademark issue, now it's a legal threat and you should just come up with a new name.

A bad name won't kill your project, but trademark infringement definitely can.

But to answer your question, .net domains are still untrusted IMO but doing a domain hack or adding a prefix for a .com domain is legit. (thefacebook.com, getdropbox.com, etc)

It isn't infringement, they don't have any registered trademark. The website doesn't even have any legal info on it at all, so I don't think it's a threat. We will probably just register it ourselves if their use of it doesn't stop us from doing so.

A bad name would kill this project, it's sort of pointless trying to convince you of it since I can't say what the name is, but it's not just an arbitrary aesthetic name like many startups use. It literally describes what we're doing and it's catchy as hell. Everyone we've told thinks it's perfect so it's something we aren't willing to compromise.

That said, thanks for your insight. I'd considered those two scenarios actually (getdropbox, thefacebook) and we will probably do something similar for the time being.

The fact that they don't have legal info on their site doesn't mean they haven't lawyered up. And no, a bad name won't kill your product. A bad product can kill a good name, though...

My advice: save yourself the headache, and come up with a new name. A lot of names don't make sense if you thnk about it. Facebook? My father thinks it's a photo booklet with headshots from your friends...

> there is another group using the .fm of our name to make a somewhat similar product

There is something called 'common law' trademark where just by use a company creates a trademark. You didn't mention if they claim (TM) which anyone can around a mark w/o registration. Odds are if they started to use first, you wouldn't be able to get them to stop, but if you are second to a category with the same name, they might have the option to stop you. But if they don't claim (TM), you could take the stance that the name is generically descriptive, and something no-one can trademark, and move forward under that basis. But then you leave open potential for others to use name as well.

I just saw this. Thanks for the info, I appreciate it. (They haven't used TM anywhere that I can find)

Ask HN: Startup name conflict