Exporting Trademark Confusion

Exporting Trademark Confusion

Ann Bartow (University of South Carolina, USA)
DOI: 10.4018/978-1-59140-576-4.ch005
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Abstract

A judicial determination of “likelihood of confusion” is the linchpin of successful trademark infringement actions in the United States, and is often useful to prevail on a trademark dilution cause of action as well. Such determinations are exceedingly subjective, and often seem premised on a very low estimation of the intelligence and powers of discernment of the typical consumer. Many appear virtually pretextual, simply adopted as a necessary step in “protecting” trademarks and according trademark holders broad property-like rights that can impair competition and silence free speech. Though seemingly irrational and generally socially undesirable, U.S. “likelihood of confusion” jurisprudence has gained a foothold in cyberspace through dispute-resolution procedures addressing disputes about Internet domain names. In consequence, trademark holders generally prevail and are increasingly seen as holding inchoate rights in any domain name containing, alluding to, or similar to their trademarks across the globe, even though U.S. trademark law logically should not have extraterritorial application.

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Dedication
Table of Contents
Foreword
John J. Neuhauser
Acknowledgments
Richard A. Spinello, Herman T. Tavani
Chapter 1
Richard A. Spinello, Herman T. Tavani
This chapter presents some foundational concepts and issues in intellectual property. We begin by defining intellectual objects, which we contrast... Sample PDF
Intellectual Property Rights: From Theory to Practical Implementation
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Chapter 2
Kai Kimppa
This chapter offers a new view on how justifiable the current liberalist view on intellectual property rights (IPRs) in software actually is if... Sample PDF
Intellectual Property Rights in Software-Justifiable from a Liberalist Position? Free Software Foundation's Position in Comparison to John Locke's Concept of Property
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Chapter 3
Michael J. Scanlan
This chapter considers certain features of Locke’s account in Chapter V of his Second Treatise concerning how a natural right of ownership can arise... Sample PDF
Locke and Intellectual Property Rights
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Chapter 4
Thomas M. Powers
The distinction in U.S. copyright law between ideas and their expressions is of particular importance in protecting software. In literary works and... Sample PDF
Ideas, Expressions, Universals, and Particulars: Metaphysics in the Realm of Software Copyright Law
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Chapter 5
Ann Bartow
A judicial determination of “likelihood of confusion” is the linchpin of successful trademark infringement actions in the United States, and is... Sample PDF
Exporting Trademark Confusion
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Chapter 6
Dan Burk
This chapter examines the relationship between hypermedia and feminist discourse, critiquing the role of copyright in controlling or suppressing... Sample PDF
Feminism and Copyright in Digital Media
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Chapter 7
Herman T. Tavani
This chapter critically examines current copyright protection schemes that apply to digital information. We begin with a brief examination of the... Sample PDF
Recent Copyright Protection Schemes: Implications for Sharing Digital Information
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Chapter 8
Richard A. Spinello
This chapter considers the theme of trespass in cyberspace. In order to prevent unauthorized use of their data several U.S. companies have hastily... Sample PDF
Trespass and Kyosei in Cyberspace
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Chapter 9
Elizabeth Buchanan, James Campbell
This chapter explores the growing threats to intellectual freedom through the loss of the information commons in the U.S. as a direct result of... Sample PDF
New Threats to Intellectual Freedom: The Loss of the Information Commons through Law and Technology in the US
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Chapter 10
Melanie J. Mortensen
The debate in Canada that occurred prior to the amendment of the Copyright Act regarding the regulation of television retransmission on the Internet... Sample PDF
Would Be Pirates: Webcasters, Intellectual Property, and Ethics
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About the Authors