If one reads the term “international” to mean “as a matter of multilateral nationto-nation
obligation,” international law does not have much to say regarding
secondary liability for trademark infringement. Nothing in the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS) dictates any
particular approach to secondary liability. The trademark part of that agreement
does not speak to the issue, and the enforcement provisions in TRIPS are stated
with sufficient generality that they cannot be read to demand secondary liability,
and certainly not any specific form of secondary liability.12 The Paris Convention
(the leading pre-TRIPS treaty requiring substantive trademark protection) is
similarly silent.13 That treaty does require protection against unfair competition,
which is one way that certain countries might conceptualize what U.S. law calls
secondary liability. But the provision in question, Article 10bis, is understood to
allow countries to implement that obligation with almost unfettered discretion.14
Permitting trademark owners to sue direct infringers would seem a reasonable (if
not always the most efficient) way of protecting rights, and that is enough to satisfy
extant international obligations.
TRIPS (like the Paris Convention, more obviously) was concluded without
regard for the challenges of online activity. Thus it is not surprising that it did not
address the question of secondary liability, which has assumed far greater
prominence in the Internet age. And in the post-TRIPS climate, where political
stalemate has resulted in limited multinational treaty making, nothing since TRIPS
has advanced to an international position. Within the World Intellectual Property