Space Pirates, Hitchhikers, Guides, and the Public Interest: Transformational Trademark Law in Cyberspace
94 Pages Posted: 1 Mar 2009 Last revised: 25 May 2014
Date Written: 2008
Modern trademark law has come of age. Like copyright and patent, it not only has a metaphysic of its own, but it also has the capacity to take goods and services out of the commons. The tendency of modern trademark law to diminish, waste, or spoil the commons is nowhere more apparent than in cyberspace. My prior analytic, descriptive, and doctrinal articles asserted the leading cases either overprotect or underprotect marks in space, and both extremes are wrong. The cases reach the wrong results at the critical margin because they neither define cyberspace nor distinguish the mark-type conflicts typically occurring among the characteristic users there. This normative article specifies a recognizably trademark-style solution to mark-type conflicts in an objective cyberspace. The solution is to add a transforming factor appropriate to the new environment: the nature and place of use. This new factor is specified for rule-based application. It extends trademark-like protection to invisible, attenuated, and expropriating users, including such uses by way of addresses, magnets, markers, roadblocks, and detours in cyberspace, requiring a reasonable technological accommodation as a flexible remedy in favor of the mark proprietor. The remedy preserves the public interest in a robust cyberspace. It permits the value-added indexer to map cyberspace and to sell advertising to pay for the resulting hitchhiker's guide. The new factor avoids extremes, leaves trademark law transformed but undamaged, and provides a principled, practical, and predictable way to distinguish space pirates from guides, disarming the one while supporting the other.
Keywords: Trademarks, Cyberspace, Initial Interest Confusion, Use as a mark, Nature and Place of use, Space pirates
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