Trademark Law and the Social Construction of Trust: Creating the Legal Framework for On-Line Identity

Abstract:     
Trust is the foundation of society for without trust, we cannot cooperate. Trust, in turn, depends upon secure, reliable and persistent identity. Cyberspace is thought to challenge our ability to build trust because the medium undermines the connection between online pseudonym and offline identity. We have no assurances of who stands behind an on-line persona or avatar; it may be one person, it may be more, it may be a computer. The legal debate to date has focused exclusively on the question of how to maintain real world identity in cyberspace. But new social software technology that enables communities from EBay to Amazon collectively to rate their members is giving rise to meaningful identity in an online context. To determine what rules should govern on-line identity and the use of such reputational data, we should look not to constitutional, copyright or tort law, but to trademark, the area of doctrine most closely analogous. Trademarks are the collaborative creation of the source of the mark and the buying public, which associates the mark with that source. The public's interest in the mark circumscribes the property rights of the individual holder. By applying trademark theory to on-line identity we can create a better set of rules to deal with the way reputation is created in cyberspace. One key consequence of this approach is the conclusion that in order to produce reliable and persistent on-line identity, past reputational data should be preserved and widely shared.

Keywords: intellectual property, trademark, indentity, cyperspace, reputation, defamation, libel

Accepted Paper Series