Rapid internet development has not only complicated traditional rules of commerce and fair competitive practices, but it has also outpaced the abilities of most legislators and legal practioners to deal with "cyberspace" issues. Many of our traditional rules are voided and some have become more important in determining rights and responsibilities among conflicting trademark users. In an effort to convey the internet's usage impact on trade practices and conventional trademark rights, I'll attempt to define "cyberspace" as it exists today and how it is currently used for commerce. This should plant a seed for thought and hopefully invoke a better appreciation of problems which lie ahead.
The "internet" and its commercial implications are still developing, ill-defined and often misunderstood. In general terms, the internet is a loose association of computers which are networked together via telephone communication links and a series of internet routers (a router is a computer linked to the national telecommunications backbone which recognizes internet addresses and sends data packets to destinations defined by the internet address, e.g., a "domain name" or "e-mail" address). These routers were maintained by the National Science Foundation, but as of May 1995, the government released control and operation of these routers to private companies. The world wide web ("WWW") is the fastest growing subset of the internet and intercommunication between web sites takes place according to the de facto web standard, the HTTP protocol (hypertext transfer protocol). Most commercial web sites consist of a "home page" that contains information about a company's products and services. A "home page" is essentially an electronic catalog, but it may also perform some underlying processing to respond to a user's query. Home page information is stored on a computer connected to a telephone line in the HTML format (hypertext mark-up language). But unlike a mere printed catalog, a home page may play audio and video clips for the user. A company's home page can literally make inquiries, perform calculations, do research, and "talk back" to a browser in an interactive manner. Today, a home page can even perform secured financial transactions to close a deal.
To find product and service information on the web, a user will employ a web browser (like Netscape or Mosaic software) which is able to access internet addresses (domain names) for categorized products and services in some organized manner. Many magazines and journals have also recently appeared that identify "hot spots" to visit on the web, and recently, I've even encountered a new breed of service providers who browse the web on behalf of clients to find information pertinent to their client's businesses. Thus, it can be appreciated that sight, sound and appearance may become more significant in the analysis of trademark rights over commercial use of internet.
Many businesses are now quickly moving to establish an internet presence by developing a home page and registering a domain name for fear they'll be left far behind their competitors if they do not. The home page's "domain name" is essential if it is to be found among myriad internet minutiae and obtaining rights to a particular domain name is a first step (and a very important one) in establishing an internet presence. However, in the flurry of domain name registrations, conflicts are arising. Recently, much attention has been given to registration of ronald@mcdonalds.com as a domain name which appeared to have been pirated by an individual who subsequently prevailed over the McDonald Corporation's objections. Since InterNIC (the central registration authority funded by National Science Foundation through a division of Network Solutions, Inc. of Herndon, Virginia) does not resolve trademark disputes during the registration process, owners of valuable trademarks could potentially suffer loss of good will and name recognition due to such piracy. However, besides conflicts in domain name registration, internet trademark users are also susceptible to "likelihood of confusion" controversy in other operative attributes of a home page. But in no instance does there appear to be a way of resolving such controversy as traditionally done in the U.S. Patent and Trademark Office Opposition Proceedings. Factors for analyzing likelihood of confusion have now reached new dimensions.
In cyberspace, not only must one evaluate similarity in sight, sound and appearance, but with interactive on-line services, we should now consider "look and feel" as indicia of origin and its capacity of contributing to the "likelihood of confusion" question. I remember when we crossed new frontiers when courts sanctioned product configuration and color as indicia of origin that met the minimum threshold for trademark registration. But today's interactive internet response system has "character" which responds predictably differently according to the user's input. Can such "electronic character" also be the subject of trademark protection? I suspect that it can, but in the trademark arena few if any decided cases ascribe trademark attributes to "character" which is more often the subject of federal copyright protection. Most probably, such character is protectable under state common law rules akin to rights of publicity.
What's more, cyberworld stretches virtually across the universe--well beyond state and national borders. Internet addresses and "domain names" have no international boundaries. Registration by InterNIC is essentially exclusive worldwide. Thus, questions of conflict and comity are within the ambit of the analysis of trademark rights. Yet trade regulation and rights establishment in the United States may have no impact on a competitor's operation in China. How are businesses to protect themselves from palming off goods of others by the use of the same or confusingly similar marks or operative attributes in the midst of ever-growing worldwide internet trade? And even if businesses adopt an "internet code of conduct" who's to stop the unscrupulous trader from palming off goods and services under the guise of the true trademark owner. I never heard of an "international" injunction. Can there be concurrent use in a divided cyberworld just like there currently exists in separate jurisdiction regions? In the establishment of priority of trademark rights, what is the definition of "adoption and use" in cyberspace? With these open questions, I submit that until the establishment of more global rules and effective enforcement, problems appear immediately on the horizon with no foreseeable resolution until well within the next millennium.