Today’s Internet is exploding with creativity and innovation, and it has spurred new markets and industries in an unprecedented period of time. Such progress is inevitably accompanied by intellectual property rights violations, particularly as the law struggles to keep pace with the exponential growth in technology. Moreover, online actors are becoming increasingly skilled at hiding their identities to evade responsibility. The service providers that these actors employ to host their Web sites, auction their domain names, provide their advertising content, process their payments, promote their businesses—and even hide their identities—have limited exposure to liability for their customers’ actions. As a consequence, service providers have little incentive to cooperate with brand owners or to voluntarily identify trademark violations. In fact, such cooperation or voluntary participation may place service providers at a competitive disadvantage. Law and practice should be revised to create incentives for service providers to work with brand owners to effect the primary purpose of trademark law: preventing consumer confusion.
This Article identifies the types of online services most often involved in trademark violations. It provides a brief review of the current statutory framework and the evolution of the common law concerning liability of online service providers. Borrowing from the Digital Millennium Copyright Act and traditional tort concepts, this Article explores avenues for legislative change and the best practices to address the issues.