Law Commons^™

Principled Standards Vs. Boundless Discretion: A Tale Of Two Approaches To Intermediary Trademark Liability Online, Stacey Dogan

Faculty Scholarship

Over the past decade, courts have developed two distinct approaches in evaluating trademark claims against online intermediaries. In one – contributory infringement – courts struggle with the tension between preserving legitimate, non-infringing uses of technologies, on the one hand, and minimizing infringement, on the other. In the other – direct infringement – liability turns on perceived wrongdoing by intermediaries whose own behavior increases the risk of consumer confusion. This second type of liability boasts neither a clear doctrinal framework nor a coherent normative vision. Most troublingly, the scant case law has paid little attention to issues at the core of …