Trademark law scholarship

Best Practices for the Law of the Horse: Teaching Cyberlaw and Illuminating Law Through Online Simulations

28 Santa Clara Computer and High Technology Law Journal 657 (2012)

In an influential 1996 article entitled Cyberspace and the Law of the Horse, Judge Frank Easterbrook mocked cyberlaw as a subject lacking in cohesion and therefore unworthy of inclusion in the law school curriculum. Responses to Easterbrook, most notably that of Lawrence Lessig in his 1999 article The Law of the Horse: What Cyberlaw Might Teach, have taken a theoretical approach. However, this Article — also appropriating the “Law of the Horse” moniker — concludes that Easterbrook’s challenge is primarily pedagogical, requiring a response keyed to whether cyberlaw ought to be taught in law schools. The Article concludes that despite Easterbrook’s concerns, cyberlaw presents a unique opportunity for legal educators to provide capstone learning experiences through role-playing simulations that unfold on the live Internet. In fact, cyberlaw is a subject particularly well-suited to learning through techniques that immerse students in the very technologies and networks that they are studying. In light of recommendations for educational reform contained in the recent studies Best Practices for Legal Education and the Carnegie Report, the Article examines the extent to which “Cybersimulations” are an ideal way for students to learn — in a holistic and immersive manner — legal doctrine, underlying theory, lawyering skills, and professional values. The Article further explains how the simulations were developed and provides guidance on how they can be created by others. The Article concludes with a direct response to Easterbrook, arguing that cyberlaw can indeed “illuminate” the entire law.


Internet Infoglut and Invisible Ink: Spamdexing Search Engines with Meta Tags

12 Harvard Journal of Law and Technology 43 (1998)

This Article addresses ‘spamdexing,’ namely, the practice of stuffing invisible keywords into webpages in order to try to get more favorable listings with search engines. For instance, some website owners will stuff the trademarks of competitors into a webpage’s code, particularly by using ‘meta tags,’ indexing keywords that can be hidden in a webpage’s source code. Although meta tags are not typically viewed by users, the code can be read by search engines, with the result that webpages may be improperly boosted in search engine rankings. Such practices can confuse the public and have also spurred trademark lawsuits. But the real harm of spamdexing is best explained not by law, but instead by information science. Namely, spamdexing introduces ‘noise’ into search engine databases, rendering searches ‘imprecise’ – i.e., overinclusive. With that in mind, the Article proposes looking to relevance and reasonable expectations. Specifically, it is necessary to consider the relevance of a website user’s search terms to the search goal, and of a website owner’s meta tags to actual website content. It is also necessary to consider the reasonableness of each party’s desire to use such terms for searching and indexing purposes, along with the interests of trademark owners. There is a tension between these interests, as searchers and website owners will tend to externalize the costs of information dissemination and retrieval, and trademark owners may sometimes object to legitimate uses of meta tags. Finally, the Article provides a broader view of new forms of dissemination and retrieval, examining the roles that libraries have traditionally played, and those that the Internet-as-library may yet play.


Showdown at the Domain Name Corral: Property Rights and Personal Jurisdiction Over Squatters, Poachers and Other Parasites

58 University of Pittsburgh Law Review 911 (1997)

This paper on domain names disputes has two main goals. The first is to analyze the principal points of litigation in domain name disputes, namely, personal jurisdiction and trademark liability. The second is to propose an analytic framework to better help resolve matters of jurisdiction and liability. Regarding personal jurisdiction, domain names are problematic because an internet site can be viewed almost anywhere, potentially subjecting the domain name owner to suit everywhere. For example, should a Florida domain name owner automatically be subject to suit in Alaska where the site can be viewed? If not, then where? Regarding liability, trademark law would normally permit multiple persons to use identical or similar trademarks, so long as the products or locations are sufficiently remote. Put differently, in the real world, UNITED AIRLINES can co-exist with the UNITED WAY. But on the internet, there can only be one UNITED.COM. As an aid to analysis, the paper proposes three categories of domain name disputes, with suggestions on how to resolve jurisdictional and liability issues for each. First, some disputes concern cybersquatters, those who speculatively purchase domain names with the intention of selling them for profit. Second, other disputes concern ‘parasites,’ those who have no intention of selling the domain, but instead hope to gain financially from confused users. Third, some disputes concern ‘twins,’ where the domain name owner and challenger both have legitimate claims to using the same name in the brick-and-mortar world. Through these three categories, the paper suggests ways of resolving issues of personal jurisdiction and trademark liability.