Poisoned Flowers in Cyberspace: Resolving Focal Point Abuses and Trademark-Related Conflicts in Space by Rewriting Code

Abstract

AUTHOR'S UPDATE NOTE (19-DEC-2012): This is an early draft, never published in this form, and it is superseded in its entirety by the published version. As published, this piece appeared as a two-part installment in Vol. 43 of the McGeorge Law Review (2012). The first installment, Poisoned Flowers in Cyberspace (Part 1), 43 McGeorge Law Rev. 199, is captioned "Finding Superman in Cyberspace" and lays out the proposed solution. Among other things, it includes a full color reproduction of a Superman comic book cover at page 295. The second installment, Poisoned Flowers (Part 2), 43 McGeorge Law Rev. 815, is captioned "Racing the Genie in Cyberspace" and is aimed at persuading juridical actors to implement the solution because it works, it is efficient, and it is authorized. Both "Finding Superman" (uploaded a few months ago) and "Racing the Genie" (uploaded to SSRN today) are now available at SSRN, and I urge any interested reader to read those published versions. END OF AUTHOR'S UPDATE NOTE (19-DEC-2012).

In cyberspace, dynamically coded focal points don’t just provide salient references. They can actually deliver a person’s augmented presence to a location. Placing reliable focal points as navigational markers in coded space is useful and indexing them is even better because these activities support the public good by providing a virtual map to cyberspace, thereby promoting access, navigation, information-activity and trust among augmented presences. In an objective cyberspace which relies upon a virtual map featuring dynamically coded focal points functioning as markers, addresses, magnets, roadblocks or detours, I propose that conduct which (a) alters the virtual map, (b) plants deceptive focal points, (c) ambushes a user of focal points with uninvited or false invitations, or (d) expropriates, blocks or spoils focal points otherwise available, should be an actionable focal point offense. The focal point offense can be specified and is limited by a “common remedy” purposely designed to be flexible, proportionate and graduated to promote a modest recoding of cyberspace to preserve its foundational values. Upon request, the common remedy forces a reasonable technological accommodation by some combination of effective (1) disclaimer, (2) notice, (3) forced redirect/release, (4) reciprocal auction, or (5) opt-out/opt-in. This avoids the all-or-nothing prohibitory remedies attending current trademark infringement, cybersquatting, uniform domain name dispute resolutions, and similar patchwork solutions to mark-type disputes in cyberspace. The common remedy disarms the poisonous nature of the flowers planted in the code world, but also preserves a thriving, robust and dynamic cyberspace. I propose a comprehensive and coherent method of designing law for the code world of which cyberspace is a part.

All focal point offenses use expressions functioning as markers or spoilers in cyberspace, and some of the more effective focal points incorporate trademarks. Quite apart from trademark-related law, I claim the specified focal point offenses in cyberspace constitute independently actionable misrepresentation or deceit, misappropriation or theft, spoilage or unfair competition. While some focal point offenses might also constitute trademark infringement, it is not immediately helpful to try to resolve all focal point offenses in cyberspace by “ordinary” principles of trademark law as developed in ordinary space. Trademark law as currently misapplied to focal point conflicts in cyberspace has raised curiously novel defenses and other aberrations that more frequently obscure than reveal what is happening in cyberspace while defacing trademark law itself. Current trademark likelihood of confusion factors, even when carefully applied, are not able reliably to predict a “likelihood of confusion” by attenuated or invisible uses of trademarked expressions in cyberspace, much less resolve the real problems caused by focal point offenses. If there is to be a likelihood of confusion analysis for some residual cases in which the proprietor might desire to assert trademark liability in addition to asserting a focal point offense, I propose a new factor to determine trademark likelihood of confusion by a rationally demonstrable “nature and place of use” analysis.

This Article extends an argument begun in a series of prior Articles and is intended to persuade juridical actors actually to adopt the proposed new solution. I claim the new approach does three things: (1) it works — it provides a highly practical resolution of cyberspace focal point conflicts because it more reliably gets to the correct result, for the right reason, persuasively explained than any other proposed solution, (2) it is efficient — it allocates costs and benefits among cyberspace actors in a Pareto-optimal manner, and (3) it is authorized, predictable and principled — it is recognizably derived from existing patterns of law already regulating misrepresentation, misappropriation, and unfair competition, and can easily coexist with trademark-related law. I also claim it is better in all three respects than any other competing explanation of, or proposal for how to deal with invisible or attenuated trademark conflicts in cyberspace.

Keywords: Intellectual Property, Trademarks, Cyberspace, Focal Points, Game Theory, Transaction Costs, Property Rights,Technological Change, Initial Interest, Use, Markers, Spoilers, Misappropriation, Deceit, Unfair Competition, Waste