Tuesday, September 29, 2009

trademark liability.

Besides copyright liability, ISPs also has to face liability over trademark infringement. According to BitLaw, if an ISP advertises their services under a trademark that is confusingly similar to a mark of another party (such as Netcomp, IBMLink, or CompuService), they would be exposed to charges of trademark infringement. In short, if the trademark used by the ISPs looks like the others’ trademark which tend to make users confuse, it is said that the ISPs have involved in trademark infringement.

According to eccouncilapac.org, Trademark liability typically involves a trademark owner suing a domain name registrant for a "bad faith" or wrongful domain name registration. The registration of an available domain name does not absolve it from potential trademark liability, if the owner of the same or a confusingly similar trade name can prove a "bad faith" registration.

The same as with the copyright infringement, an ISP is not directly liable towards any trademark infringement made by its users but however it could be liable for contributory trademark infringement. The element of knowledge is also vitally essential in putting the ISPs into this liability as if there is no knowledge in the part of the ISPs provider, the liability cannot be imposed towards them. Much like the contributory copyright infringement, contributory trademark infringement also can be established whereby the ISPs are considered to play the role of encouraging or facilitating the illegal activities.

However, there are still no reported cases on this trademark liability towards ISPs but referring to BitLaw, the Netcom decision should be referred and discussed in connection with the cases of copyright infringement.

farahiyah, anis & fara.


Anonymous said...

how can the isp provider be responsibled for their customers actions of infringing others trademark rights? that is an issue to be solved first if e were to regard the providers as someone who contributingly caused the infringements to happen.. just saying... :)


farah eileena said...

thank you ina for your opinion and comment.
cheers. :D