Online Word of Mouth and its Implications for Trademark Law

By Eric Goldman

I’ve posted my latest academic work, Online Word of Mouth and its Implications for Trademark Law, to the web. This is a chapter in a book edited by Graeme Dinwoodie and Mark Janis containing contributions from leading trademark scholars from around the world.

Online word of mouth describes chatter about marketplace offerings that historically has taken place in the workplace hallways or in casual interactions between family/friends but is now electronically mediated. In the first part of the chapter, I argue that online word of mouth warrants exceptionalism from trademark law because it represents an unprecedented type of demand-shaping content that is both outside the control of trademark owners but has a potential global reach. In the second part of the chapter, I show how existing trademark law improperly inhibits online word of mouth. Specifically, this chapter ties into the “trademark use in commerce” debate by arguing that “commercial referential trademark uses“–the mechanism that flips online word of mouth into trademark law–should be categorically immune from trademark scrutiny.

I’m particularly excited about this chapter because it ties together a number of themes that I’ve been addressing on this blog for the past (nearly) 3 years. I know a lot of you are interested in online trademark issues, and this chapter is a “succinct” (well, <10,000 words) distillation of my analysis and arguments on these topics. So if you want to see my thoughts about online trademark law sketched out in a single integrated discussion, read this article. Plus, it makes for excellent plane/train/car reading on the way to/from your Thanksgiving destination! The abstract:

This Chapter discusses the emergence of online word of mouth, the process by which consumers disseminate their views about marketplace goods and services. Due to online word of mouth, consumers have an unprecedented ability to influence the brand perceptions of other consumers. Unfortunately, these effects have put doctrinal pressure on trademark law, leading to judicial interpretations that inhibit the flow of online word of mouth and may damage the efficacy of marketplace mechanisms. This Chapter will explore how trademark law should be interpreted to preserve the flow of socially beneficial online word of mouth.