Regulating Poisoned Flowers
Posted: 2 Mar 2009 Last revised: 17 Mar 2010
Date Written: February 9, 2009
Actionable deceit, misappropriation, spoilage or unfair competition in cyberspace does not suddenly become privileged just because the offender also incorporates someone else's trademark and ingenuously claims there was no "use" of the offending expression "as" a mark. Conversely, value-adding conduct in cyberspace that incorporates technologically reasonable accommodations to mitigate any incidental harm should not be forbidden simply because a trademark is somewhere or somehow involved.
Where there is an otherwise actionable cyberspace intervention, the incorporation of a mark makes the underlying offense more egregious and its effect more harmful. It compounds the fault and might also constitute an independent act of trademark infringement, but it should not obscure what is actually happening with the new technological uses that occur in the code world, cyberspace and the new machines that design and are designed by the architecture of that world. Offensive cyberspace interventions effectively deny access, obstruct navigation, take unfair advantage of augmented presences, and destroy trust in cyberspace. Such deliberate acts of sabotage, if actionable at all, do not depend upon whether or not the offending actor incorporates a trademark within the offending expression, nor does it make any difference whether the actor "uses" the expression (under some unnatural reading of trademark law) "as" a mark, nor does it turn upon whether there is some non-preclusive "initial interest confusion" (under some other misbegotten version of trademark law). On the other hand, conduct that fosters and supports cyberspace and which increases the reliability of its virtual map by use of navigational markers does not automatically become taboo simply because a trademark lurks somewhere in the ether.
This Article is yet another modern moral realist/normative jurisprudential experiment in designing law for the code world by making explicit choices. This time the goal is to persuade the reader that the previously specified new factor: the "nature and place of use" for new technological uses in the code world does three things necessary to become part of the everyday law. In this Article, I claim that the new factor: (1) works, (2) is efficient, and (3) is authorized, predictable and principled. I also claim it is better in all three respects than any other competing explanation of, or proposal for how to deal with invisible or attenuated trademark-related disputes in cyberspace.
Keywords: Trademarks, Markers, Spoilers, Cyberspace, Initial Interest Confusion, Use as a Mark, Nature and Place of Use
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