DOI: 10.5176/2251-3809_LRPP15.04

Authors: Althaf Marsoof

Abstract:

The Internet is a source of rich and diverse content. Yet, not all that is diverse is legal. Among other things, the Internet has become a dangerous source of counterfeit goods, the availability of which is advertised through online content appearing on various Internet platforms. Internet intermediaries providing content hosting services, such as webhosts, search engines and online marketplaces, operate platforms on which content relating to infringing goods may be stored and published. In the circumstances, trademark owners have begun to increasingly use ‘notice and takedown’ procedures that most Internet intermediaries have in place to remove infringing content with a view of safeguarding their interests on the Internet. However, empirical research pertaining to the operation of ‘notice and takedown’ carried out in the copyright context suggests that these extra judicial procedures are often abused by rights holders resulting in the removal of perfectly lawful content, thereby affecting the practice of fair use and free speech on the Internet. This claim is valid with equal force in the trademark context, but with greater consequence.

Keywords: Notice and Takedown; Internet intermediaries; counterfeits; trademark infringement; fair competition; free speech

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