by Paul Bonewitz
The purposes behind trademark law have evolved substantially
since Congress first passed the Lanham Act. From a time when
confusion was the accepted rationale for all liability based on
trademark use, modern economic theory has grown to support extended
trademark protection in some situations. In the late
nineties, Congress endorsed this theoretical expansion by passing
trademark dilution and anticybersquatting laws.
Technology has continued to outpace the law, however, as
advertisers seeking to take advantage of a vast and expanding
online market have rapidly developed new advertising practices and
related trademark uses. Congress has not responded to these
changes. As a result, courts have approached novel situations
based on incomplete analogies to offline advertising and
confusion-based doctrine that fails to account for the unique
economic burdens some internet advertising practices place on
consumers. The results have been predictably
inconsistent.
This Note argues that in order to both serve consumers’ better
interests and provide uniformity in the law, legislation is needed
to address online trademark practices that move beyond mere
comparative advertising and actively interfere with the ability of
consumers to reach desired trademark owners. Only by
expressly facing these new trademark uses apart from the Lanham
Act’s language of confusion can trademark law fulfill its economic
goals in the context of internet advertising.