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The Role and Responsibility of Internet Intermediaries in the Field of Trademarks Konstantinos Komaitis Policy Advisor, Internet Society www.internetsociety.org Overarching theme Is there a need for regulatory action at an international level concerning the use of trademarks on the Internet and, if so, what would that be? 2 The Internet Society What can ‘international regulation’ mean? a. Treaty, Agreement or Convention b. Binding c. Formal (or less formal, depending on the instrument) d. Harmonization (general rules of common application) e. In ‘writing’ f. General Rules of law, independent of previous practice of states (e.g. art. 2(4) of the UN Charter prohibiting the threat of or use of force in international relations) 3 The Internet Society Regulation vs. the Internet The Internet: Open and distributive architecture, managed and evolved through incremental direct user-based process. Speed, flexibility and global (technical) value. Regulation: Managed and evolved incrementally through judicial and legislative processes. Cumbersome, bureaucratic and national (public policy) value. 4 The Internet Society Regulation < The Internet 5 The Internet Society International vs. Trademarks Trademarks Territorial, national intangibles (culture), and geopolitic specific. Consumer-focused. International (law) Global values and framework. Focusing on states rather than private citizens. 6 The Internet Society Impact of international regulation on trademarks Evolution of trademark law – from incremental judicial making to jus cogens? Issues of (In)Consistency. 7 The Internet Society Examples of Trademark Inconsistency (1)! Domain Names a. Nature of domain names – contracts for services vs. property rights b. Anticybersquatting Consumer Protection Act (ACPA) – United States. c. ccTLD Dispute Resolution Policies, e.g. NOMINET UK Dispute Resolution Policy. d. The Uniform Domain Name Dispute Resolution Policy (UDRP) – International and managed by the Internet Corporation for Assigned Names and Numbers (ICANN). 8 The Internet Society Examples of Trademark Inconsistency (2)! Intermediary Liability a. Tiffany v. eBay – United States: “Tiffany must ultimately bear the burden of protecting its trademark. […] The court finds that when eBay possessed the requisite knowledge, it took appropriate steps to remove [counterfeiting] listings and suspend service”. b. L’Oreal v. eBay – ECJ: “Websites such as eBay may be liable for trademark infringement if they play an “active role” in promoting fake goods. When the operator has played an ‘active role’ [of that kind], it cannot rely on the exemption from liability which EU law confers, under certain conditions, on online service providers such as operators of internet marketplaces”. 9 The Internet Society In favor(?) of an International Regulatory Framework! Which body would be appropriate to address such issues pertaining to trademarks and the Internet? Under what governance and institutional arrangements? How do we reconcile the existing inconsistency to move towards an international framework? 10 The Internet Society Against an International Regulatory Framework! Premature. Role of (national) legislature and judiciary. “We know it, when we see it”! Best practices and experiences. 11 The Internet Society Guidance: Example of good practice. Intent 12 The Internet Society Design Choices Commercial Motivation Conclusion (1). Two questions: a. Policy: which party should police the mark? b. Passivity: whether and when intermediaries can be liable for failure to act? 13 The Internet Society Conclusion (2). Should we continue to pressure for answers regarding intermediary liability (in the context of trademarks)? Oversimplifies an inherently complicated question; Juxtaposes a dynamic question by seeking static solutions; Disconnects decision making from the realities of the Internet and the (individual) needs of the nation State. 14 The Internet Society Thank you! [email protected] 15 The Internet Society