As tracking down individual infringers proved to be both inefficient and nearly
impossible, brand owners employed secondary liability principles to begin
targeting intermediaries facilitating the infringements.6 Many cases have zeroed in
on which party ought to bear the burden of monitoring for infringements, and at
what point the intermediary’s mediating nature is no longer neutral but conducive
or willfully blind to such infringements.7 Legal scholarship has responded with
analysis and reform suggestions to the current secondary liability regimes in the
United States and around the globe.8 Nearly all appear to embrace one essential
view: secondary liability rules must defend rights holders’ interests in better
protecting their brands from trademark infringement online, but the rules must not
deter legitimate and productive activities in the Internet marketplace.9 The
application of this well-accepted view, however, engendered a multiplicity of
judicial decisions and academic views, all attempting to solve this equilibrium
conundrum. In this Symposium, too, speakers homed in on the various means
through which the delicate balance may be struck. In fact, as Dr. Annette Kur
pointed out, the word “balance” has become so hackneyed in this context that
scholars began referring to it as “the B word