Intermediary Trademark Liability: A Comparative Lens

Although we live in a global, interconnected world, legal scholarship – even scholarship about the Internet – often focuses on domestic law with little more than a nod to developments in other jurisdictions. That’s not necessarily a bad thing; after all, theoretically robust or historically thorough works can rarely achieve their goals while surveying the landscape across multiple countries with disparate traditions and laws. But as a student of U.S. law, I appreciate articles that explain how other legal systems are addressing issues that perplex or divide our scholars and courts. Given the tumult over intermediary liability in recent years, comparative commentary on that topic has special salience. In this brief (draft) article, Graeme Dinwoodie explores both structural and substantive differences in how the United States and Europe approach intermediary trademark liability in the Internet context. To an outsider, the European web of private agreements, Community Directives, CJEU opinions, and sundry domestic laws can appear daunting and sometimes self-contradictory. Dinwoodie puts them all into context, offering a coherent explanation of the interaction between Community law, member state law, and private ordering, and situating the overall picture within a broad normative framework. And he contrasts that picture with the one emerging through common law in the United States. The result is a readable, informative study of two related but distinct approaches to intermediary trademark law