Marguerite S. Dougherty

The explosion of electronic commerce and Internet technology has engendered a variety of new trademark offenses. These new offenses include trademark appropriation based upon metagging, hyperlinking, framing and key word triggering. While these offenses present great challenges for our courts, the first challenge to be addressed is that of personal jurisdiction. As presence on the Internet is electronic rather than physical, traditional personal jurisdictional analysis is inappropriate.

This Note provides an overview of the Internet, examines trademark issues arising from the Internet and analyzes the present jurisdictional tests employed as derived by the Supreme Court. The author then surveys federal court decisions that apply those traditional tests to trademark issues arising from this incomparable medium and posits that these decisions cannot be synthesized into a coherent body of law and thus fail to give "fair warning" to Internet users and operators in violation of due process.

This Note then reviews trademark legislative history and the national uniformity policy of trademark law that has been tested by court decisions and, in response, amended by Congress. This Note concludes that as the predictability of trademark law once again is in jeopardy, Congress once again must act. In response, the author proposes a statutory solution that amends section 39 of the Lanham Act by providing for nationwide jurisdiction in trademark controversies derived from electronic contacts on the Internet.