TAKING DOWN TRADEMARK BULLYING: SKETCHING THE CONTOURS OF A TRADEMARK NOTICE AND TAKEDOWN STATUTE

12 Wake Forest J. Bus. & Intell. Prop. L. 392

“We have removed or disabled access to the following content that you have posted on Facebook because we received a notice from a third party that the content infringes or otherwise violates their rights: [insert your Facebook page name here].” For many college or high school students, such a message might result in social angst at losing access to a primary means of communication. In an increasingly socially-interconnected business world, however, a business receiving such a message stands to lose much more: “friends,” “likes,” connections, customers, reputation, and ultimately, revenue. The means by which access to a business’s online content may be curtailed by online intermediaries (“OIs”)1 vary immensely, but often arise out of an alleged breach of a third party’s copyrights or trademarks.2 While the Digital Millennium Copyright Act (“DMCA”)3 provides for uniform, non-litigation mechanisms for pursuit and defense of claims of copyright infringement on the internet through a structured “notice and takedown” system (“NTS”), no such mechanism exists for trademark infringement. Businesses attempting to enforce trademarks or defend against alleged infringement are left at the whim of OIs’ varying policies and procedures in a “race to the bottom” whereby OIs seek (perhaps arbitrarily) to protect themselves from being construed as trademark infringers or being held liable on a contributory basis for user infringement,4 all without regard for the merits (or lack thereof) underlying the assertion or defense of trademark rights by users and third parties.