Missing the Mark in Cyberspace: Misapplying Trademark Law to Invisible and Attenuated Uses
33 Rutgers Computer & Tech. L. J. 137 (2007)
114 Pages Posted: 1 Mar 2009
Date Written: 2007
Leading cases have misapplied ordinary principles of trademark and unfair competition law in cyberspace, especially to attenuated and invisible uses. Though the leading cases uniformly assert they are merely applying ordinary principles of trademark law to cyberspace, they are actually in conflict with one another and with ordinary principles of trademark law. The leading cases are in conflict because they tend toward the extremes of over-protecting or under-protecting marks in space, and both extremes are wrong. These cases put trademark law on a path that will either diminish the value of cyberspace by imposing liability on an indexer who tries to recover costs by selling targeted advertising, or will disfigure the law itself as it adjusts the meaning of "use" to exonerate such activity. This article explains why current approaches are unlikely to resolve the conflicts in the cases, and suggests a desired solution.
Keywords: Trademarks, Cyberspace, Initial Interest Confusion, Use "as" a mark
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