The Position in the United States
This Chapter addresses the uncertainty and the still unclear judicial standards for assessing contributory trademark infringement in the United States. The Chapter proceeds as follows. Part II outlines the developments of the doctrine of contributory trademark infringement, first in the brick-and-mortar world and subsequently in the online context. Based upon this analysis, Part III criticizes the uncertainty that surrounds the application of the judicial standards to determine contributory infringement, particularly in the online market place. Part III also attempts to provide some explanations for the current judicial decisions and highlights that courts seem to apply a “we know it when we see it” standard to identify contributory trademark infringers. Notably, Part III states that courts seem to distinguish between intermediaries who acted in “good faith” and who are generally not held liable for contributory infringement, and intermediaries who acted in “bad faith” and profited from the infringement, and who are held liable for contributory infringement. Part III concludes that although this judicial line of reasoning may prevent broader liability for “good” intermediaries, all intermediaries and legal operators would benefit from a clearer interpretation of the current standards in this important area of trademark law.
Christopher Heath & Anselm Kamperman Sanders
Intellectual Property Liability of Consumers, Facilitators, and Intermediaries
The Position in the United States,
Available at: https://scholarship.law.tamu.edu/facscholar/703