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Intellectual property on the Internet.

There are two types of intellectual property that are prominent on the internet, trademarks and copyright. Trademarks are used by businesses to differentiate their products or services from those of their competitors. Copyright protects creative literary, artistic, musical or dramatic works. This article will describe the manner in which the international scope of the internet is straining the established framework of trademark law and copyright law.

As businesses move onto the internet, the domain names for their internet sites function as trademarks. A body known as the Internet Network Information Center (InterNIC) approves domain names for use on the internet. Domain names intended as commercial sites are designated by InterNIC by the suffix .com. InterNic has found itself caught in the middle of numerous disputes, as a business in one country discovers that a competing business based in another country has acquired a domain name that is identical or confusingly similar to their trademark. The danger, of course, is that business will be lost by the legitimate national trademark owner to the company that controls the internet domain name. This problem has created a race by some businesses to acquire domain names corresponding to their trademark before another business does. To further complicate the matter, in each country there are domain name granting bodies that operate completely independently of InterNIC. Domain names granted by these national bodies are designated by two letter country identifiers; in Canada that identifier is .ca. It is, therefore, possible for there to coexist an international domain name and numerous national domain names with identical prefixes and differing suffixes; i.e., law-now.com, law-now.ca, law-now.us, law-now.de, law-now.uk, etc.

A number of businesses have deliberately selected generic domain names, for the strategic purpose of funnelling internet traffic to their internet site. An internet site bearing the name of the product or service will, of course, be identified by internet browsers in priority over other sites. There have been unsuccessful attempts in the German courts to obtain injunctions preventing businesses from using generic domain names such as rechtsanwalt.de (rechtsanwalt is german for lawyer) and wirtschaft.online.de (finance/business.online).

Every country has its own laws. Lawyers are faced with the task of trying to decide in what country to bring legal proceedings and the law to be applied. Objectionable activities that are a breach of Canadian law may be legitimate in the country of the person who controls the domain site. The courts will only hear a case when they are satisfied that the defendant either resides or is doing business within the jurisdiction of the court. What constitutes doing business has been and will continue to be an issue in these cases. Where the courts have accepted jurisdiction they have generally recognized that there will unavoidably be competing claims to domain names between legitimate commercial users. Under trademark law identical trademarks frequently coexist where the activities of the businesses are sufficiently different that confusion is unlikely to arise. The courts have, therefore, only intervened where the defendant has been unable to establish a legitimate claim to the domain name and the court has formed the opinion that the selection of the name was not bona fide. There have been some clear cases of abuse resolved through the courts, where name grabbers have reserved domain names belonging to prominent corporations such as Toyota, Honda, American Airlines, etc. Some notorious name grabber cases involve individuals who have reserved hundreds of domain names. Few cases involving generic domain names have come before the courts, as yet. They will eventually have to be dealt with under laws relating to unfair competition. In the meantime the businesses controlling these domain names will have a strategic advantage.

Care must be taken as to what use is made of trademark and copyright matter at internet sites you control. Bulletin board operators have been found liable for infringement where the court has found that they knew or should have known that infringing activity was taking place. When a business distributes printed material that infringes a trademark or copyright of another, the damages are limited to the number of copies made (i.e., 300 infringing copies x $1.00 per copy). However, when the same infringement takes place at an internet site, the potential damages can be enormous. Popular internet sites receive thousands of hits every month. It is not just the content at your internet site that can constitute infringement. The structure of your site may also create infringement issues. In order to attract persons surfing the net to their internet sites, businesses are spending thousands of dollars on creating sites which will be both memorable and entertaining. An example of such a site that starts with an advertisement and leads to many activity layers is coke.com. Setting up an internet site that is intentionally similar to an innovative site of another business may constitute copyright infringement.

The internet has also created new types of infringement as a result of the use of hyperlinks, framing, and metatags. In constructing a internet site hyperlinks are often imbedded into the internet site. The hyperlinks link the primary site to other sites of interest. In this way the internet site of the business becomes a gateway to a myriad of other related sites of interest. In a United States case, Ticketmaster took issue with the use of hyperlinks by Microsoft. Microsoft established an internet site called their sidewalk that was intended as a one stop entertainment guide for a number of cities, including Seattle. The site was supported by advertising revenue from the Seattle business community. Ticketmaster's position was that while Ticketmaster was incurring the expense of maintaining their site, it was Microsoft that was profiting through advertising revenues at Ticketmaster's expense. (To visit the sidewalk go to http://www.micro soft.com/sidewalk/teamseattle.htm). Another type of linking of sites is known as framing. With framing, instead of going to another site, materials from the other site are drawn into a frame at the primary site. In another United States case, The Washington Post, Reuters and Cable News Network objected to the use of framing by Total News Inc. Total News Inc. provided a listing of headlines. Persons wanting more information could double click on the headline and a frame would appear with more information. In the frame appeared material, without informing the viewer as to the source of the information. (To visit the Total News site go to http://www.totalnews.com). Metatags are search aids that are imbedded at an internet site. These search aids are not visible to the human eye, but are picked up by internet browsers. Playboy Enterprises, Inc. took exception when Calvin Designer Label embedded at their internet site metatags relating to the Trademark Playboy.

The internet grew with a culture that involved a free expression of ideas and free exchange of information. The evolution of the internet into a channel of commerce is going to take time and is going to require some changes. During the last few years the internet has experienced explosive growth. Problems that were considered hypothetical a few years ago are becoming of serious concern to the businesses effected. Court decisions presently coming out of Europe and the United States are providing guidance for Canadian lawyers in advising their clients in Canada.

Douglas Thompson is a lawyer with the firm of Thompson Lambert in Edmonton, Alberta.
COPYRIGHT 1998 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1998 Gale, Cengage Learning. All rights reserved.

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Author:Thompson, Douglas
Publication:LawNow
Date:Apr 1, 1998
Words:1238
Previous Article:Doing business on the Internet.
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