Online use of trade marks

Abstract

During the past decades, computer technology has evolved at such a pace that it made it hard for computer users to keep apace with. This evolution has arrived at a point in which it is impossible to ignore these advances. Nowadays, most persons are conversant with computers and use these machines for work purposes and also for informational, educational and leisure purposes. Businesses have responded to the spread of computing technology and the near universal availability of Internet access by using technological advancements to communicate and do business with consumers. Electronic commerce is now a core issue for businesses. However, certain legal issues arise from the cross-border use of computing technologies such as the Internet. In the Intellectual property field, the Internet has raised a number of concerns. The Internet has eliminated national borders and has thus created a situation which is in direct conflict with the territorial nature of intellectual property rights. This fundamental difference has resulted in new legal issues which are unique to the Internet context. Trade mark infringement occurs when an unauthorised person uses, in the course of trade, a sign which is identical to, or similar to, a third party's trade mark and uses this sign with reference to identical or similar goods or services to which that trade mark is registered. The application of this requirement to cases involving the Internet is far from being straightforward. Moreover, due to the global nature of the Internet, trade mark infringement litigation may involve more than one state. In such situations, as in any other private legal relationship with un international element, it is necessary to resolve a number of key issues - the establishment of jurisdiction, the choice of the applicable law and the recognition and enforcement of foreign judgments. In summary, the major problem within this context is that the evolution of the Internet has been too fast to cope with at the legislative level. Courts have had to apply existent laws to situations which are unique and very often these laws are not adapt for such situations.