The State of Nature on the Internet: Litigating Pop-up Ad & Trademark Keying Cases

Mar 2005

As with man in the state of nature, entities in the Internet realm—regardless of their stature offline—may find their existence to be “solitary, poor, nasty, brutish, and short.” Moreover, within both provinces, we find three principal causes of quarrel: (1) competition; (2) diffidence; and (3) glory. Without well-defined rules of law (or a common power to keep all men in awe), the state of war is inevitable. So it goes with pop-up advertising and trademark keying on the Internet: website owners seek exclusive control over intellectual property within their digital domains, challengers employ newly developed tactics to expand their Internet sovereignty at the expense of competitors, and Internet law remains equivocal. This Article seeks to provide fodder for combatants on both sides of the Internet law battle over pop-up advertising and trademark keying practices.

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