he online context of many contemporary uses of trademarks has also, as in
other areas of intellectual property law, prompted a demand for international
solutions to the potential liability of intermediaries for secondary trademark
infringement. Most countries have long recognized a cause of action for engaging
in conduct that U.S. law would call secondary trademark infringement. But in
many countries outside the United States, those causes of action are not
denominated as actions for “secondary infringement.” Nor are those claims always
theoretically conceived in the same way they are under American law. In some
countries, courts will treat a fact pattern handled by U.S. law under the rubric of
secondary liability as involving direct liability under tort law for failure to conduct
business in a particular way or a failure to take certain reasonable precautions.* 5
This Article assesses the international treatment of these causes of action, first
by looking at international law principles as conventionally understood—namely,
state-to-state obligations regarding the content of domestic law (Part I.A.).
However, there is little of relevance to the secondary liability question if the
international landscape is understood in those terms. Thus, the Article also
analyzes commercial practices that are contributing to soft transnational law (Part
I.B.) and compares the regimes adopted by the United States and the European
Union as leading examples of approaches to the secondary liability question