[12341] in Commercialization & Privatization of the Internet
Internet trademarks
daemon@ATHENA.MIT.EDU (DAN L. BURK)
Mon May 16 13:20:51 1994
Date: 16 May 94 11:23:00 EST
From: "DAN L. BURK" <DBURK@gmuvax.gmu.edu>
To: "com-priv" <com-priv@psi.com>
Barry Shein writes:
> Hey, first in time, first in right, basically.
> Assuming they're both in a similar business or feel the marks conflict
> then they settle it in the usual way. I don't see where DNS introduces
> anything into this.
Oddly enough, I happen to be researching a paper on this topic.
"First in time, first in right" isn't the first question to ask about
trademarks. Because they arise out of the common law, rights to the same
mark can arise simultaneously on different markets. Traditionally, these
have been geographic markets.
Consequently, the first step in trademark infringement analysis would be to
ask whether the marks are used in the same geographic market, then to ask who
was first to use the mark. (Federal registration under the Lanham Act throws
a couple of twists into this, but the analysis is basically the same.)
The Internet as medium changes the picture, I think, because it defies
geography -- it makes no sense to ask whether two designations on the net
are used in the same geographical territory.
As someone else mentioned, this also creates an international territoriality
question -- under the traditional formulation of law, a nation's laws extend
only as far as its geographic borders. For more on this problem, see my
article, "Patents in Cyberspace: Territoriality and Infringement on Global
Computer Networks," 68 Tulane Law Review 1 (1993). The article focuses on
U.S. patent law. but most of the discussion applies to trademark law as well.
Dan L. Burk
George Mason University
dburk@gmuvax.gmu.edu
