The advent of the Internet has only enhanced some of these strategic benefits.
The efficiency gains are magnified substantially when the number of infringements
to which the secondary liability defendant contributes are multiplied many times
over. And looking forward, the secondary liability action might shift some of the
costs of trademark enforcement to intermediaries. This occurs whether the mark
owner directly secures relief from a court that requires an intermediary to undertake
certain detection and prevention measures, or because the intermediary adjusts its
practices to be more conservative in light of an award made against it under
principles of secondary liability. This means that a finding of secondary liability
may enable mark owners to affect the future structure of business models employed
by intermediaries and the direction of technological development considered by
intermediaries.
Of course, this last strategic benefit to mark owners creates the specter of highly
intmsive regulation of the business of intermediaries operating in the online
environment.* 3 In particular, secondary liability claims bring into focus the effect of
liability upon technological development, which is not traditionally considered as a
central part of trademark (as opposed to copyright or patent) policymaking. Thus,
in these cases, we must balance the rights of the mark owner with enabling
legitimate development of innovative technologies that allow new ways of trading
in goods (or offering services)