Author(s)
Source
DePaul-LCA Journal of Art & Entertainment Law, Vol. 10, pg. 227, 2000
Summary
This article asserts that cyberspace will see an increase in trademarks and thus more trademark-related disputes.
Policy Relevance
The Internet has created new ways of infringing on trademarks and also provided more opportunities for trademarks to be infringed in traditional ways. This can be seen as either making trademarks more important or hindering e-commerce; regardless, it is inevitable.
Main Points
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Metatags and keywords for banner advertising are two new ways that the Internet has created to infringe on trademarks.
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Metatags are essentially hidden code that search engines reference to identify the content of a website. Thus they can be inserted invisibly to a website and cause a search engine user to be misdirected.
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Metatag misuse should be trademark infringement based on the theory of “initial interest confusion.” This theory states that misuse lures potential consumers to other sites by misleading them and hoping they simply settle for what they find there rather than what they were truly looking for.
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Keywords for banner advertising are another method of manipulating search engine results that could be considered trademark infringement.
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Search engines can sell the advertising space that appears when certain keywords are searched.
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This may or may not be trademark infringement, it depends on if the courts decide that it is fair competition or trademark dilution.
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Domain names are a major source of trademark infringement. The Network Information Center (NIC) or registrar reserves domain names. Once reserved, a domain name is always a cyberspace address on the Internet, but a domain name can also become a valid trademark, and be infringed.
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The traditional criteria for determining a trademark are used to determine if a domain name is a trademark. The main distinction is if the mark has been used in a way that would make its origin as separate from any other source perceptible to a viewer.
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If a domain name is a valid trademark it can be infringed. Cybersquatting, pre-emptively reserving domain names in order to hold them ransom, is the major source of consternation in infringement.
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Since it is difficult to hold cybersquatters liable using traditional trademark infringement law, the 1999 Anti-Cybersquatting Consumer Protection Act and the 2000 Uniform Dispute Resolution Procedure for Domain Name Disputes, are legal tools developed specifically to deal with cybersquatters.