United States Approaches to Trademark Protection in Cyberspace

Abstract

The rise of the internet and electronic commerce has transformed United States trademark law in significant ways. The technological and structural choices that created the internet spawned online trademark uses that challenged traditional legal doctrines governing the power of trademark owners to control the uses of their marks. The result of these challenges has been the rapid expansion of prior doctrines to apply to these new issues, with somewhat dubious reasoning, and the creation of new causes of action to protect trademark owners’ interests. Although the final impact of the internet has yet to be felt, some basic conclusions may be drawn: (i) courts and regulators in the United States have rapidly expanded trademark owners’ rights; (ii) the pace of technological change will continue to challenge existing laws and interpretations; and (iii) United States legal decision makers should be mindful of the possible future effects of the doctrines they espouse. In this essay, I focus on two areas: (i) cybersquatting and dilution; and (ii) metatagging, keywords, and initial interest confusion. Although these two areas provide only a taste of the legal issues raised by online trademark usage, they capture the basic approach that lawmakers have taken in the face of technological challenge—protect trademark owners’ interests.