Author(s)
Source
Trademark Law and Theory: A Handbook of Contemporary Research, Dinwoodie and Janis, eds., Edward Elgar Press, 2008
Summary
The author argues that online word of mouth poses a great challenge to Internet trademark law.
Policy Relevance
If trademark law is misapplied it can hinder consumers from making good choices in the marketplace. Online word of mouth can be an excellent tool for rewarding good brands; however, applying trademark law to online word of mouth poses new risks that might curb its usefulness.
Main Points
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“Word of mouth” is the process of transmitting information from person to person, sharing opinions about marketplace offerings, etc.
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Traditional word of mouth is more limited in its scope, and has higher costs associated with it. Examples are: product experiences, trademark owner’s advertising, retail interactions, and consumer word of mouth.
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Online word of mouth is much broader, reaches more people, and can influence many more people than traditional word of mouth.
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Courts are unsure of how to deal with online word of mouth and thus have applied trademark law to online word of mouth inconsistently.
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While some consumers’ online word of mouth may run afoul of the trademark infringement laws, this is not especially common, particularly if a consumer does not offer any of their own goods or services in the marketplace, and most tend not to.
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Trademark holders can sometimes use their clout to remove negative online word of mouth, a result that reverses one of the intents of trademark law, which is to help consumers create accurate perceptions of brands.
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Courts must more rigorously scrutinize trademark use for the commerce requirement. This would preserve judicial economy and protect online word of mouth.
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If courts are cognizant of online word of mouth’s merits, they can find ways to avoid the undesirable result of squelching valuable information on the Internet and preserve consumers’ access to accurate brand information.