Converging Standards of Protection from Secondary Liability for Trademark and Copyright Infringement Online

Abstract

After reviewing the standards of secondary liability for copyright and trademark infringement in the online context, this Article considers the extent to which the liability of online service providers would change if a DMCA-like safe harbor scheme was applied in cases of secondary trademark infringements. It concludes that courts addressing trademark secondary infringement claims are already granting online service providers a level of protection that is in many respects equivalent to that in the DMCA, with the possible exception of the reach of the willful blindness doctrine. Ultimately, the outcomes appear to turn in large part on whether or not the court perceives the defendant to be a good faith operator.

Keywords: Trademarks, Copyright, Secondary Liability, Willful blindness, DMCA

JEL Classification: K11, O34