I have not asked for seamonster to provide the name of his business or what sort of service his business provides (although he offered to do just that in his first post). Not knowing this information
does make it more difficult to determine what, if any, action seamonster can take against his competitor. And it also means that what is provided here is the most basic of information. seamonster will want to consult with an attorney in his area for advice tailored to his specific facts.
Without the name of seamonster's business, I am only guessing that it is a name that is protectable under trademark law. If seamonster and his competitor both have cleaning services and the names of their businesses are "Cleaning Service," the name is not only not protectable under trademark law, any infringement suit he might consider would be an exercise in futility.
With that said, the answer to your last question, justalayman, is "no." There
are plenty of cases involving internet trademark infringement claims, but none to my knowledge that actually
settle anything. Courts have been defining and applying the Lanham Act's "use in commerce" in different ways.
One case that is most often cited by courts in internet infringement cases is, however,
Planned Parenthood Federation of America, Inc v Bucci, 42 USPQ 2d 1430 (S.D.N.Y. 1997), an internet "parody" action. The Court here said that "use in commerce" includes establishing a home page on the internet for access by consumers.
From
Planned Parenthood Federation of America, Inc: "The activity involved in this action meets the 'in commerce' standard for two reasons. First, defendant's actions affect plaintiff's ability to offer plaintiff's services, which, as health and information services offered in forty-eight sates and over the internet, are surely 'in commerce.' Thus, even assuming, arguendo, that defendant's activities are not interstate commerce for Lanham Act purposes, the effect of those activities on plaintiff's interstate commerce activities would place defendant within the reach of the Lanham Act....Second, Internet users constitute a national, even international, audience, who must use interstate telephone lines to access defendant's website on the Internet. The nature of the Internet indicates that establishing a typical home page on the Internet, for access to all users, would satisfy the Lanham Act's 'in commerce' requirement."
New West Corp v NYM Co of California, Inc similarly held that advertising and pre-sales even with
no sales was "use in commerce" and could establish trademark rights.
But then other courts have held as the Court in
Buti v Perosa, 139 F.3d 98, 105 (2nd Cir 1998), stating that advertising and promotion on a website, unless accompanied by sales or services, was not sufficient to show "use in commerce." In other words, these courts have said that trademark rights are not established merely by having an advertising website on the internet.
A few other cases that may hold some interest for their discussions on this are:
CCBN.com, Inc. v C-Call.com, Inc, 1999 US DIST LEXIS 18187 (D. Ma. 11/18/99).
Shade's Landing, Inc. v James C. Williams, US DIST LEXIS 19782 (D. Mn 12/22/99).
Green Prods. Co v Independence Corn By-Prods, Co, 992 F.Supp 1070 (N.D. Iowa 9/25/1997).
As an additional note, a court looks at several factors when deciding if a use is infringing or not. The most important factor will be if there is evidence of consumer confusion and/or if there is a likelihood that consumers will be confused by the same or similar trademarks. Other factors will include proximity or geographical locations, the market for the goods and services, the similarities of the goods and services, the strength of the mark (how well it is recognized by consumers), and the degree of caution used by a typical consumer.
Internet trademark infringement disputes, by the way, are mostly arising over domain name uses. But trademark infringement suits have been increasing in general, as the internet has made it possible for someone operating a business in Maine to know about a same-named company in Arizona. Before the internet and website advertising, these competing businesses often did not know the other existed.