Trademarks and the Internet: The United States\u27 Experience

This article is divided into three sections: (II) The past; (III) The Present; and (IV) The Future. Part II will focus on the early judicial decisions applying trademark law to the Internet. It will examine the Internet\u27s frontier period, discuss some of the early cases and their fact patterns, and attempt to show how the courts re-wrote various doctrinal elements of trademark law so they could reach the bad actors before them. While this period is characterized more by the predominantly bad faith nature of the defendants than by a calendar, it runs for approximately five years, from the first judicial application of trademark law to the Internet in 1996 until just past the turn of the millennium. From there, we transition to the present, where we examine the shift from bad faith defendants to good faith defendants, and analyze how courts responded. Part III will discuss how the get-the-bad-actor mindset that the judiciary developed in the Internet\u27s frontier era lingered, at least for some courts, a bit too long, and then lay out some of the distinctions and doctrinal revisions the courts have used in an attempt to rein in the potentially overbroad reach of the Internet\u27s frontier era trademark law. Again, the period is defined more by the predominantly good faith nature of the defendants than by a calendar, but runs, more or less, from 2001 through the present. Finally, Part IV will conclude with some thoughts on where we should go from here