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http://ssrn.com/abstract=1351000
 
 

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Missing the Mark in Cyberspace: Misapplying Trademark Law to Invisible and Attenuated Uses


Thomas Folsom


Regent University School of Law

2007

33 Rutgers Computer & Tech. L. J. 137 (2007)

Abstract:     
Leading cases have misapplied ordinary principles of trademark and unfair competition law in cyberspace, especially to attenuated and invisible uses. Though the leading cases uniformly assert they are merely applying ordinary principles of trademark law to cyberspace, they are actually in conflict with one another and with ordinary principles of trademark law. The leading cases are in conflict because they tend toward the extremes of over-protecting or under-protecting marks in space, and both extremes are wrong. These cases put trademark law on a path that will either diminish the value of cyberspace by imposing liability on an indexer who tries to recover costs by selling targeted advertising, or will disfigure the law itself as it adjusts the meaning of "use" to exonerate such activity. This article explains why current approaches are unlikely to resolve the conflicts in the cases, and suggests a desired solution.

Number of Pages in PDF File: 114

Keywords: Trademarks, Cyberspace, Initial Interest Confusion, Use "as" a mark

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Date posted: March 1, 2009  

Suggested Citation

Folsom, Thomas, Missing the Mark in Cyberspace: Misapplying Trademark Law to Invisible and Attenuated Uses (2007). 33 Rutgers Computer & Tech. L. J. 137 (2007). Available at SSRN: http://ssrn.com/abstract=1351000

Contact Information

Thomas C. Folsom (Contact Author)
Regent University School of Law ( email )
Virginia Beach, VA 23464
United States
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