Principled Standards vs. Boundless Discretion: A Tale of Two Approaches to Intermediary Trademark Liability Online

Stacey Dogan
Over the past decade, courts have developed two distinct approaches in evaluating trademark claims against online intermediaries. The first and most common method frames the issue as one of secondary liability: should the intermediary face liability for wrongdoing committed by its advertisers, subscribers, or other users of its services? In this approach, courts struggle with the tension between preserving legitimate, non-infringing uses of technologies on the one hand, and minimizing infringement on the other. While...
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