While courts have created a doctrine of contributory trademark infringement in response to the expansion of goods and services from brick-and-mortar to the Internet, the exact duties of web hosts under the rule are not yet clear. Despite judicial attempts to carve out new standards to define traditional requirements, the application of these standards remains inconsistent and has left unresolved ambiguities. The disparities between the standards may be balanced through an analysis of the affirmative duties imposed by the law on online service providers, as well as a closer look at the relationship between a service provider and user. This Article reexamines the meaning of contributory liability for web hosts in light of their active and passive roles in such relationships, and considers the factors of good (and bad) faith in the conduct of defendants, practicability of affirmative duties, and inherent differences between types of online service providers as potential deciding factors.
From Inwood to Internet and Beyond: Assessing the Web Host-User Relationship in Contributory Online Trademark Infringement,
11 Wash. J. L. Tech. & Arts
Available at: https://digitalcommons.law.uw.edu/wjlta/vol11/iss2/3