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by Timothy J. Walton Trademarking is a method of protecting brand recognition. Most suits over trademark violation involve consideration of whether the infringing conduct resulted in confusion in the marketplace. Confusion can be over origin (such as appropriating the name of a competitor) or misrepresentations regarding nature or quality (like claiming that orange juice is "freshly squeezed"). To prevent dilution of famous marks, however, a suit need not involve confusion. Mere usage of a trademark may be a violation if unauthorized. In the context of the World Wide Web, trademark violation generally occurs in one of two ways: within the URL or as content on the Web page. A great deal of litigation has revolved around whether an attempts to register a domain name which contains a protected trademark is a violation of the owner’s rights. The short answer is that registrations for the purpose of sale to the trademark owners are violations. Domain name owners who have usurped trademarked names have been forced to surrender the registered name. In the early days of the Internet, many enterprising "netizens" registered domain names of famous companies to sell a profit when the company decided it need a website. These people became known as "cybersquatters". This type of behavior was and is unlawful under U.S. trademark law and courts do punish offenders. ICANN, the International Coalition on Assigned Names and Numbers, has instituted an arbitration system for determining whether a trademark owner has the right to take away domain names. Whether U.S. courts will recognize the authority of ICANN to make such decisions remains to be seen. Trademarks can appear in portions of the URL other than the domain name. A subdirectory name can use a trademark, or a specific file name can contain a trademark. For example, the fictional URL http://www.cleonline.com/pepsi/pizzahut.html would seem to violate two trademarks. But a federal judge in California has ruled that such usage is entitled to less protection than domain names because it is merely descriptive and does not entail the likelihood of confusion that domain name usage does. The court found that as long as the content of the page does not lead to confusion about source, then there is no violation when a server uses a trademark as a descriptive indicator. As in other areas of law, freedom of speech may be a defense to suit for violation of trademark, particularly when satire or parody is involved. The defense is limited, however, and will generally not avail when there is commercial intent or alternative avenues of communication.
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