AbstractDespite the obvious advantages of the internet, there is little debate that it significantly facilitates Intellectual Property (IP) rights infringements, particularly in the trademark context. Infringers not only remain hidden by the anonymity that the internet provides, but also take advantage of the difficulties in enforcing IP rights. In these circumstances, it has become necessary to shift focus from the actual infringers, and instead focus on internet intermediaries (such as Internet Service Providers (ISPs), hosts and navigation providers, such as search engines) that are responsible in numerous ways for making content, including those that infringe trademark rights, available to internet users. Accordingly, this thesis addresses the following research question – ‘what are the approaches for, and challenges in, holding internet intermediaries accountable for infringements of trademark rights?’ This thesis argues that accountability can be achieved through both monetary and non-monetary remedies.
The first substantive part of the thesis focuses on monetary remedies. Although trademark law in the United Kingdom (UK) and the English common law have not provided trademark owners with an effective remedy against internet intermediaries, by which these intermediaries could be held liable for their role in making infringing content available to internet users, the experience in other Member States of the European Union (EU) and in the United States (US) has been quite the opposite. In the second substantive part, this thesis builds on the discussion concerning approaches in the US and continental EU Member States, in order to propose suitable reforms to UK (as well as EU) trademark law that would potentially allow aggrieved trademark owners to claim monetary relief against internet intermediaries in the form of an action for trademark infringement. The proposal for legal reforms identifies the class of intermediaries against whom, and the circumstances in which, such monetary relief should be made available. Consequential legal reforms are proposed in order to counter the potential abuse of notice-and-takedown procedures, which this thesis identifies as a direct consequence of the interplay between the proposed liability framework and the EU safe harbour that limits such liability.
The last substantive part of the thesis considers injunctive relief as a means of holding internet intermediaries accountable for making infringing content available to internet users. This part sets out how injunctions have been utilised in the UK against ISPs, and identifies key challenges underpinning this remedy, while also considering its application to other types of intermediaries. Having considered comparable approaches in Chile, Singapore and Australia, recommendations are made for suitable legal reforms to the EU legal framework, which has hitherto shaped the development of UK law in this regard. These suggested reforms are aimed at overcoming the challenges associated with the injunctive remedy, while promoting it as an effective way of holding internet intermediaries accountable for making content that infringes trademark rights available to internet users.
|Date of Award||2017|
|Supervisor||John Phillips (Supervisor) & Tanya Aplin (Supervisor)|