Internet Technologies and the Traditional Conceptions of Trade Mark Protection in the UK
Authors: Panesar, G.
Editors: Kretschmer, M. and Soetendorp, R.
Volume: 1
Publisher: Bournemouth University
Place of Publication: Poole, England
Abstract:The Internet is a network of networks defined by its associational technologies. Panesar’s paper focuses on the tools of hyperlinking, framing, keyword-banner advertising and meta-tagging which strongly influence the users’ navigational behaviour and are therefore of considerable commercial value.
While website owners may want to control the pathways to the consumer, the Internet’s foundational community considers associational tools as the fabric, even language, of the World Wide Web. Panesar initially contrasts the values of the parties as ‘freedom of the internet’ and ‘intellectual property’. He then goes on to dissolve this dichotomy by reviewing theories of trade mark law, siding with the UK’s traditional approach that insists on the ‘indicator of origin’ function of trade marks. Trade marks carry information that allow consumers to associate quality and product. This should also help to preserve the integrity of Internet navigation.
The US doctrine of trade mark dilution, which provides for the protection of investments in brands regardless of consumer confusion is assessed in detail, as is the evolving European jurisdiction on this issue.
Panesar shows, however, that the traditional interpretation of trade marks leaves considerable scope for opportunistic behaviour, for example where websites attract traffic by buying search engine keywords, insert meta-tags with competitors’ names (while avoiding liability through discussing the competitor’s product - relying on a fair use defence), or bypass commercially valuable home page hits through deep linking (while avoiding liability with disclaimers). Panesar provides an authoritative review of trade mark case law on these issues, and suggests that there might also be technological rather than legal solutions, such as next generation search engines.
Martin Kretschmer & Ruth Soetendorp
Source: Manual