Trademark's Unfair Nominative Fair Use Defense: Protecting e-Commentary from Censorship by Corporate Monoliths

Authors

Tom Abeles

Abstract

This article is concerned with the problem when an in-house attorney with vast resources and experience sends a cease and desist letter to a smaller review site, who may not have the resources to hire an attorney. A modest website may surrender to the request of a powerful corporation, especially if the cease and desist letter was overly intimidating. Website owners who are unfamiliar with trademark law present an attractive target in this situation and may not see a nominative fair use defense, which is not strong enough to protect these types of users. Review sites providing useful commentary or consumer commentary, good or bad, should be encouraged rather than deterred.

The goals of this article are two-fold: (1) to educate owners of websites that host e-commentary of their fair-use rights; and (2), to offer a solution to protect those who remain unaware, in a sense equalizing the imbalance between the two parties caused by the disparity in resources and experience. This article presents an introduction to trademark law in the Internet context, focusing specifically on the economics of consumer review sites. Next, it presents an investigation of the evolution of the nominative fair use doctrine, which can be used to help protect review sites. We will discover that the current doctrine is ill-suited for such a task. Third, this article will expose new issues arising out of this e-commentary and the ways large corporations attempt to censor bad reviews. Finally, the last sections of this article discuss reasons for increasing protection of review sites, some proposals by scholars, and an additional proposal that helps solve some of the new problems previously overlooked.

Recommended Citation

Tom Abeles, Trademark's Unfair Nominative Fair Use Defense: Protecting e-Commentary from Censorship by Corporate Monoliths, 33 UC Law SF Comm. & Ent. L.J. 181 (2011).
Available at: https://repository.uclawsf.edu/hastings_comm_ent_law_journal/vol33/iss2/2