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Internet Expands Trademark Infringement

By Jonathan Bick
May 25, 2007
It should strike no one as a surprise that the fluidity of using trademarks on the Internet expands the incidence of trademark-infringement claims and lawsuits. And along those lines, novel Internet trademark claims spring from the innovative but unlawful use of trademarks in e-commerce. Logically, then, it follows that Internet domain names, hyperlinks, meta tags and framing marks enlarge the number of trademark-infringement opportunities.

While it's true that as an information conduit, the Internet reduces the likelihood of confusion by allowing the buyer to approach an online purchase with more sophistication, the technology also bolsters the likelihood of confusion among consumers using the Internet by allowing new, unlawful uses of trademarks. Also, the traditional use of a mark on the Internet (to identify the source of goods) is likely to amplify certain trademark characteristics, including:

  • The strength of a mark;
  • The proximity of the products or services to a geographical location; and
  • Actual confusion.

Trademark Particulars

Trademarks connect a name or symbol with a good or service. They benefit owners by allowing them to profit from the goodwill associated with the mark. On the other side of the potential or actual transaction, trademarks benefit consumers by memorializing a level of quality. U.S. trademark law is designed to prevent confusion in the marketplace and is enforced by preventing fraud through deception.

The elements necessary to prove trademark infringement are well established under federal and state case law. These elements apply to Internet and traditional trademark infringement. A plaintiff in a trademark-infringement matter has the burden of proving that the defendant's use of a mark has created a likelihood of confusion about the origin of the defendant's goods or services. This proof is achieved by the plaintiff first showing that it has developed a trademark right worthy of protection, and then showing that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake or deception ' or a combination of these misapplications ' among the consuming public.

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