New York partner Peter Brown, national leader of Baker Hostetler's new Technology Law Practice, authored an article, "Trademark Fair Use Online," which was published in the June 2010 edition of The Computer & Internet Lawyer.
According to Brown, "In recent years, Internet-related trademark litigation has made a perennial appearance in courtrooms at all levels. As a consequence, it is imperative to determine whether legal principles developed from a brick-and-mortar world can bride the gap into cyberspace."
Brown continues: "Three key areas of trademark law recently have been pout to this test, with important and sometimes incompatible outcomes. First, in areas of fair use, and especially nominative fair use, it appears that the Internet creates few if any novel issues that cannot be solved by applying current doctrine. In the context of online advertising, however, new methods and technologies unique to the Internet have created the need for fresh approaches to previously non-existent problems. Finally, ever-improving interactive Web capabilities have created increased avenues by which contributory liability may attach to the conduct of others. A thorough understanding of the unique nature of these Internet-related developments is integral to understanding trademark law more generally."
Brown's article goes on to detail these Internet-related developments companies are facing, including:
Brown concludes: "The Internet creates many opportunities for misuse of trademarks. In many instances the underlying rules for use of trademarks on the Internet remains the same as those for traditional commerce. The greatest source of future risks for trademark owners is the proliferation of user-generated content, where the case law is still evolving."