Every so often, I check out my hometown newspaper, The Nashua Telegraph to see what’s happening in the area I grew up, and once in a while there’s an article of interest to me related to my business.
Yesterday, there was an article about the owner of a new website called MyDemoulas.com, which is an informational website about a fairly large New England Supermarket chain called Market Basket. The Market Basket chain was originally founded by the Demoulas brothers (ironically in Lowell, Massachusetts), and it was known as Demoulas Market Basket. I remember my family referring to it as both “Demoulas” and later, “Market Basket.”
Getting to the point, Market Basket does not have its own website. To make up for this lack of a website, a local web developer named Michael Devaney created MyDemoulas.com, which has information about store locations and hours, circulars, special offers…etc. His site fills in for where Market Basket neglects their online audience, and the site is not associated with the chain.
The website clearly states that it’s “The only Market Basket website,” and it uses the Demoulas name in its domain name. In addition, the article mentions that Devaney is generating revenue from this website, and it also mentions that the company has not bought the website, despite “a number of inquiries” from Devaney.
There is no trademark for “Demoulas” in the USPTO, but I would imagine they could have some rights to it, especially when used in this way. In fact, I would bet they would be vehemently opposed to someone opening a supermarket in New England call Demoulas, since that name still means something to many (probably common law rights would be asserted if nothing else).
In my opinion, the owner is on shaky legal ground because he is profiting while using marks related to the Market Basket chain. I am not a lawyer, and it doesn’t seem like he has explicit permission to use the Demoulas domain name, especially in association with a Market Basket site.
It bothers me that an article like this was written.
For one thing, it encourages others to do similar things, although many might not have the technical skills to implement a website, so they could simply stop after buying a potentially infringing domain name. Secondly, it could put the guy in a bad spot, if Market Basket does build its own website and doesn’t want to be generous with this guy. They could possibly file a UDRP for the domain name or even a Lanham Act lawsuit.
I am all for entrepreneurs building businesses, but if you plan to use another company’s mark or brand, I believe you should get their permission first.