Odgovornost internet posrednika za povredu žiga
Liability of internet intermediaries for trademark infringement

Author(s): Jelena Ćeranić Perišić
Subject(s): Law, Constitution, Jurisprudence, Civil Law, International Law
Published by: Institut za uporedno pravo
Keywords: Internet intermediaries; trademark infringement; vicarious liability; comparative legal analysis; European Union law; United States legal framework
Summary/Abstract: The Monograph Liability of Internet Intermediaries for Trademark Infringement focuses on the liability of Internet intermediaries for infringement of a trademarked mark committed by third parties, users of online platforms. A comparative legal analysis of the liability regime of internet intermediaries for trademark infringement points to the absence of harmonization of national and international approaches to vicarious liability of online service providers. Since it is not feasible to analyze all existing national liability regimes of internet intermediaries for trademark infringement, the monograph presents as representative liability regimes of internet intermediaries in the laws of the United States of America, the European Union, the Republic of Serbia and in international law. A clear Atlantic divide can be seen, more precisely the difference between the approach adopted in the United States of America and the approach adopted by European countries. However, even within the European Union itself, the jurisprudence of the member states is not uniform in terms of liability for infringement of a trademark protected mark on the Internet. As for the Republic of Serbia, the legal regime of liability for trademark infringement on the Internet is harmonized with European standards. When it comes to the international level, there have been attempts to regulate this issue at least partially within the framework of some international legally binding act. All attempts, however, ended in failure, so the so-called hard international law does not regulate this issue. However, on the field, the so-called of soft international law, some progress has been made in this matter. Regarding the structure of the monograph, it is divided into seven chapters. General notes on the use of a trademarked mark on the Internet, Internet intermediaries and vicarious liability are given at the very beginning of the monograph (Chapter I). When it comes to the regulatory framework of the United States of America, there is only the outdated Lanham Act of 1946 in this area, which does not contain provisions on vicarious liability. Therefore, the terms of liability of Internet intermediaries for trademark infringement in US law are the result of case law of US courts (Chapter II). The issue of liability of internet intermediaries for trademark infringement in European Union law is currently regulated by the Electronic Commerce Directive, which refers many aspects of liability to the national courts of the member states. Therefore, the issue of responsibility of internet intermediaries within the European Union is not regulated in a uniform manner (Chapter III). The legal framework of liability for trademark infringement in the Republic of Serbia is harmonized with European standards and can best be seen through the prism of the provisions of the Law on Trademarks, the Criminal Code and the Law on Electronic Commerce, while judicial practice in this area does not exist for now (Chapter IV). Finally, only international law, understood in terms of international legally binding sources (hard international law), does not regulate this issue, while soft law offers certain solutions (Chapter V). Despite the territorial fragmentation of the liability regime of Internet intermediaries, comparative legal research indicates that no legal system manages to provide an adequate response to the needs of interactive communication participants. Therefore, there is a need to reform the liability regime of Internet intermediaries for trademark infringement both on the national and international horizons (Chapter VI).

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