Online Brands and Trademark Conflicts: A Hegelian Perspective

Abstract

<jats:title>Abstract:</jats:title><jats:p>The Internet presents opportunities for corporations to efficiently build their brands online and to enhance their global reach. But there are threats as well as opportunities, since anti-branding and free-riding activities are easier in cyberspace. One such threat is the unauthorized incorporation of a trademark into a domain name. This can lead to trademark dilution and cause consumer confusion. But some users claim a right to use these trademarks for the purpose of parody or criticism. Underlying these trademark conflicts is the familiar tension between property rights and free speech rights. While some trademark scholars are reluctant to consider a trademark as property, we find strong support for the property paradigm in Hegel’s philosophy. Assuming that a trademark is an earned property right, we propose that a trademark owner should be allowed to control the permutations of its trademark incorporated into domain names unless a reasonable person would not confuse that domain name with the company’s mark. But we also conclude that there must be latitude to employ a domain name for negative editorial comment, so long as the source and purpose of that domain name is plainly apparent.</jats:p>

Exploring the Legality of Consumer Anti-branding Activities in the Digital Age

“…In other words, the actions of anti-branders should not be challengeable under trademark or dilution laws as they are practicing their First Amendment rights and they do not gain any economic benefits (Kopp and Suter 2000;Katz and Carnahan 2001;Katyal 2006;Kay 2006;Spinello 2006;Krishnamurthy and Kucuk 2009;Katyal and Sonia 2010) as long as they have no direct and indirect competitor support.…”

“…Trademarks are believed to provide brand information that facilitates the consumer decision-making process and reduces consumer search costs and confusions by semiotically distinguishing brands from each other (Spinello 2006;Beebe 2008;Manning and Paul 2010). Differential distinctiveness among alternative brands is generally created by building a distinct brand identity (Beebe 2008;Manning and Paul 2010).…”

“…Without trademarks, consumers might not have clues about product quality. From a company point of view, trademark laws protect their brand semiotics from infringement and free-riding, preventing the unfair use of registered brand symbols and signs by competitors (Spinello 2006). Although this provides some protection for a brand against competitors with bad faith (a company-to-company relationship level), it says little about the possible protection of a brand in a conflict between the company and its consumers.…”

“…Many anti-branders argue that trademark laws give corporations too much cultural power and control (Spinello 2006) and that corporate semiotic power in modern markets should be reduced or shared with everybody for the sake of a well-balanced semiotic democracy. With the power-equalizing effects of the Internet companies are now forced to learn to share their brands with consumers (as 'ownership' of a brand evolves from company to consumer, and finally to the ''Public Domain'', as indicated in Table 4).…”

“…Corporate ownership and total control of brands might kill the creativity behind these counter-semiotic brand meaning and identities, which might eventually bring the original brand to an end through a 'last-resort' consumer refusal to engage with it. Trademark laws give corporations too much cultural control (Spinello 2006), denying the consumer a contribution or response to the brand meaning creation process. Clearly questions can be raised as to how and why consumer anti-branding activities should be considered brand dilution-confusion, brand creativity, or both.…”