Journal Article

Hauling in the middleman: contributory trade mark infringement in North America

James L. Bikoff, Keri A.F. Johnston, David K. Heasley, Phillip V. Marano and Andrea Long

in Journal of Intellectual Property Law & Practice

Volume 5, issue 5, pages 332-343
Published in print May 2010 | ISSN: 1747-1532
Published online May 2010 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpq027
Hauling in the middleman: contributory trade mark infringement in North America

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Legal context

This article discusses the differing positions in the US and Canada in relation to contributory trade mark infringement. In the US, indirect liability has blossomed from its ancient roots in tort law to reach an increasingly diverse spectrum of intermediaries and this can consistently be found at the intersection of IP law and the law of the internet. The position in Canada differs in that there is no history of “secondary” liability available.

Key points

In the US part of the article, the authors track the historical development of indirect trade mark liability, from its bricks and mortar origins to it modern application in relation to intermediaries such internet service providers for example. In Canada where this option is not possible, the issue is how a brand owner can frame a legal challenge against an intermediary when the ability to argue “secondary” liability from a trade mark perspective does not exist.

Practical significance

The authors suggest that the evolution of indirect trade mark liability in American jurisprudence may inspire lawyers in other jurisdictions grappling with similar problems.

Journal Article.  9320 words. 

Subjects: Arbitration ; Intellectual Property Law

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