Promoting Trademark’s Ends and Means through Online Contributory Liability

Promoting Trademark’s Ends and Means through Online Contributory Liability

E. Jordan Teague · 14 Vand. J. Ent. & Tech. L. 461

Abstract

Trademark law accomplishes its ultimate end—helping consumers easily find, distinguish between, and trust products and services from different brands—through the means of giving markholders an incentive to develop and cultivate these brands in the first place. While individual trademark laws should serve these ends and means, this is not the case with contributory infringement in the United States as applied to the Internet. First, since the doctrine is based entirely in common law with little case law specifically addressing the online context, contributory infringement gives online service providers (OSPs) little notice as to what types of behaviors could result in liability, encouraging providers to be over responsive to markholders to the ultimate detriment of consumers. Second, this climate of uncertainty could very well discourage innovative startups with shallow pockets from entering the market. As a result, the public could be deprived of technologies that help accomplish trademark law’s consumer-oriented goals. Third, recent case law suggests that judges are putting too much faith in the free market’s ability to regulate trademark on the Internet. This Note recommends a federal statute to clarify the duties of OSPs in such a way that promotes trademark’s ends and means.