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2 - Law: too lethargic for the online era?

Published online by Cambridge University Press:  18 July 2009

Uta Kohl
Affiliation:
University of Wales, Aberystwyth
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Summary

National trademarks versus international domain names

The clash between national law and the transnational online world starts with the most basic aspect of the Internet, namely, its address system, the domain name. Johnson and Post in ‘Law and Borders – The Rise of Law in Cyberspace’ used the conflict of trademarks with domain names (as well as other marks on websites) as the archetypal example to argue for a paradigm shift away from laws based on geographic boundaries, that is, traditional national laws. Their initial statement of the problem captures its essence perfectly and has been echoed innumerable times.

Consider the placement of a ‘traditional’ trademark on the face of a World Wide Web page. This page can be accessed instantly from any location connected to the Net. It is not clear that any given country's trademark authorities possess, or should possess, jurisdiction over such placements … Large US companies may be upset by the appearance on the Web of names and symbols that overlap with their valid US-registered trademarks. But these names and symbols could also be validly registered by another Party in Mexico whose ‘infringing’ marks are now, suddenly, accessible from within the United States.

Since then, a decade has passed, confirming the accuracy of this description again and again. Not only has intentional trademark abuse flourished on the Internet, but there have been countless disputes with one legitimate trademark owner, inadvertently through his online activities, encroaching onto the territorial sphere of another equally legitimate trademark owner.

Type
Chapter
Information
Jurisdiction and the Internet
Regulatory Competence over Online Activity
, pp. 33 - 65
Publisher: Cambridge University Press
Print publication year: 2007

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