Secondary Liability for Trademark Infringement on the Internet: The Situation in Germany and Throughout the EU

It is a safe assumption that every one of the twenty-eight EU Member States has some form of secondary liability principles within its general tort law. Traditionally, tort law principles require an element of deliberate contribution to, and therefore positive knowledge of, another person’s action. They are therefore of limited value for situations like Internet infringement, because the contributor is typically unaware of persons committing concrete acts of infringement. When the contributor merely provides the technical infrastructure that is used by an anonymous crowd for legitimate as well as illegitimate purposes, the “deliberate contribution” or “positive knowledge” element is difficult to prove. The general principles of tort law are not harmonized within Europe. However, regarding Internet services that may be misused for unlawful acts (including, but not limited to, intellectual property infringement), the E-Commerce Directive has created a legal framework for exemptions from liability (the safe harbor). In that regard, the E-Commerce Directive is the European equivalent of the U.S. Digital Millennium Copyright Act (DMCA), with the notable distinction that the E- Commerce Directive applies horizontally, thus encompassing trademark infringement

Brand Symbols, the Consumer, and the Internet

The article gives an overview on the way in which trade marks – or rather: brand symbols – operate in the internet environment. Referring to interdisciplinary research in psychology and neuroscience it is shown how the soft coercive power of brands and the spell they tend to cast over the mind and actions of consumers is reinforced in the digital age where the exposure of consumers to commercial messages is massively enhanced due to the pervasiveness of the internet. Before that background, the article summarizes the legal issues that so far have been in the foreground of practice and scholarly discussions regarding trademarks and the internet. It is posited that those issues as well should be resolved in the light of the larger picture involving the psychological, sociological and cultural dimensions of the use of brands in the digital age