Friday, September 14, 2007

Recommended Reading: "Trademarks and the Internet: the United States' Experience," by Prof. Glynn S. Lunney, Jr.

The latest issue of The Trademark Reporter includes an informative and highly readable article by Professor Glynn S. Lunney, Jr. of Tulane University Law School, entitled "Trademarks and the Internet: the United States' Experience," 97 TMR 931 (July-August 2007). [download here]. Professor Lunney reviews the growth of Internet trademark law "from essentially nothing to a full-fledged regulatory scheme in less than a decade."

Prior to 2000, by the time the ACPA and UDRP arrived, the problems posed by the Internet were "largely resolved by the courts' imaginative rewriting of trademark's general infringement provisions and the doctrine of dilution" The Internet's "frontier days" were over by the turn of the century, as established businesses began to recognize the Internet's commercial potential. Rather than the bad actors of the early days, "Internet defendants now typically had some legitimate, good faith basis for their behavior." The courts have been forced to confront their own decisions from the frontier era. "Having just rewritten the rules to make every decision, black or white, easy in order to control the rampant lawlessness of the Internet's early days, stare decisis made re-writing the rules yet again a somewhat tricky proposition."

The result is, according to Professor Lunney, a muddle. In some cases, courts have resorted to hair-splitting to distinguish cases; in others, they have given an "overly-narrow interpretation to one legal rule in an attempt to counteract an earlier, overly broad interpretation of a different rule."

He believes that courts should re-focus on "what trademark law is supposed to protect," recognizing and balancing the sometimes competing purposes of trademark law to protect the consumer as well as the trademark owner.

Trust me, the article is more entertaining that my brief, cryptic excerpts.

TTABlog note: Another thank you to The Trademark Reporter for granting permission to provide a link to this article, which is Copyright © 2007 the International Trademark Association and reprinted with permission from The Trademark Reporter®, 97 TMR 931 (July-August 2007).


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