This morning featured an informative but disappointingly cut-short session titled "Protecting Your Online Brand" featuring, among others, Brian Murray of Cyveillance, Inc., and Marty Schwimmer. After the session I took a camphoto of the two of them and Airblogged it here (I forgot to rotate the photo before sending, so you may have to go into a yoga posture to see it upright).

Bryan talked about "brand defense" and showed slides of some egregious brand abuse, including the vipfares scam, the various ebay fishing scams, and a bong made from a coca-cola bottle (fun!).
He made two interesting and noteworthy points: first, he suggested that adware and keyword bidding are merging, and second, that many adware issues are caused by partners(!). So, if you're a lawyer for a company that does any online marketing, make sure that your partner agreements cover compliance issues and contain strict restrictions on your partner's use of your brand identity.

Later, it was Marty's turn to speak and his session could have easily lasted the rest of the day (instead it was cut off after ten minutes, to everyone's disappointment). Marty began by noting that it was the ten year anniversary of the beginning of trademark issues online: the famous Adam Curry cybersquatting case where he registered MTV.COM. I was in my second year of law school when that case happened; the next semester Cardozo began offering an Internet class, taught then by Prof. Marci Hamilton. I can't believe it's already been ten years. Damn.

Anyway, Marty talked about trademark counterfeiting, infringement, dilution, unfair competition and so forth. He was cut off before he could get to the most important trademark issue of the day: keywords (discussed in an earlier Blogbook post here).

Afterward I cornered him to talk about an issue dear to the hearts of all of us here at the Blogbook: First Amendment and Fair Use defenses. For my generation, and those younger, the manipulation, subversion and mockery of famous trademarks is a crucial form of speech - social, commercial and political. The brilliant brand subversions in rave flyers and tee-shirts from the 1990s were so fantastic precisely because - unlike Warhol paintings - they were not art, they were speech. Just as copyright law can be abused to stifle important and necessary social interaction, so can trademark law. Luckily, the courts (for now) still understand the difference between commercial trademark infringement and the mocking use and gentle subversion of trademarks for speech and social commentary purposes. I perhaps needn't point out that we at The Blogbook have taken it upon ourselves to exercise our freedoms; because freedoms unexercised are freedoms lost.

In short, the discussion with Marty was excellent. He clarified some issues that I had been confused about and told me about a couple of cases that I was unaware of.

I look forward to thinking and writing more about these issues in the near future.