Racing the Genie in Cyberspace (Poisoned Flowers, Pt. 2): Implementing the Solution to Focal Point and Trademark Disputes in Cyberspace by Rewriting Code

149 Pages Posted: 21 Dec 2012

See all articles by Thomas Folsom

Thomas Folsom

Regent University School of Law

Date Written: 2012


In the first part of this article, Finding Superman in Cyberspace (Poisoned Flowers, Part 1), I identified and solved a particular problem in a particular place. It was the problem of navigation in an objective cyberspace, sometimes aided by the legitimate use, and at other times harmed by the offensive misuse of findable and exploitable expressions that function as markers or spoilers, roadblocks or detours in a coded world. These are problems caused by the misuse of dynamic “focal points,” some of which contain trademarked terms.

In this second part, I aim to persuade juridical actors to implement my proposed solution for three good reasons. First, it works. It provides a higher-quality resolution of cyberspace focal point and trademark-related conflicts than any other existing or proposed solution. Second, it is efficient. It quickly and easily allocates costs and benefits among cyberspace actors in a Pareto-optimal manner, just as Professor Lessig demonstrated as he resolved the hypothetical conflict caused by poisonous flowers in cyberspace (in his book, “Code and Other Laws of Cyberspace”). This is an instantiation of his hypothetical, adapting it to resolve the problem of invisible and attenuated trademarks and focal points in cyberspace. Third, it is authorized, predictable, and principled, and it is the only solution that recognizes the underlying problem, which is the use and abuse of focal points with or without trademarks. My proposal is suitable for immediate implementation, and there is an increasing urgency to solve the problem, hence my title, Racing the Genie.

Author's Notes: This paper should be read together with Part 1, Finding Superman in Cyberspace, which is also posted at SSRN.

Many have asked where to find the full-color artwork. The full-color reproduction of the Superman comic book cover art is in Finding Superman at page 295.

Some have asked where to find the hint sheet. The hint sheet to some of the Easter Eggs embedded in these articles (including references to Ali Baba, the Wizard of Oz, magic horses, Justice Roberts, Glenn Reynolds, Captain Malcolm Reynolds, and others) is in Finding Superman at note 5.

This paper (Racing the Genie) has several tear-off, public domain (creative commons-licensed) appendices beginning at page 924 and, like many of my articles, includes some pictures to illustrate some of my points, at pp. 959 & 960.

Keywords: intellectual property, trademarks, cyberspace, focal points, new technological uses, law of the horse, poisonous flowers, magic horses, Superman, law and economics

JEL Classification: O30, O31, O33, O34, O38, K19, K20

Suggested Citation

Folsom, Thomas C., Racing the Genie in Cyberspace (Poisoned Flowers, Pt. 2): Implementing the Solution to Focal Point and Trademark Disputes in Cyberspace by Rewriting Code (2012). McGeorge Law Review, Vol. 43, No. 815, 2012, Available at SSRN:

Thomas C. Folsom (Contact Author)

Regent University School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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