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Background of Secondary Trademark Liability on the Internet



By Darin M. Klemchuk

Mr. Klemchuk is an intellectual property (IP) trial lawyer, with significant experience enforcing patent and trademark rights. He is a founding partner of Klemchuk Kubasta LLP (http://www.kk-llp.com/). More information about Mr. Klemchuk can be found at his bio: http://www.kk-llp.com/Darin-Klemchuk.asp.

While the law does not always evolve at the same speed as technology, today's law recognizes a number of ways companies and individuals can be found liable for inducing or contributing to another's trademark infringement online. This law provides brand owners with opportunities to stop infringement online by seeking to hold liable a third party that controls or provides the means of infringement. This law finds its roots in a U.S. Supreme Court case from 30 years ago.

The Genesis of Secondary Trademark Liability

In Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 546 U.S. 844 (1982), the court wrestled with whether a third party could be held liable for trademark infringement of another. The court held liability may be imposed where a manufacturer or distributor (1) intentionally induces another to infringe a trademark, or (2) continues to supply a product to someone who the defendant knows or has reason to know is engaged in trademark infringement. This ruling sets the background...

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