The DMCA is part of a larger group of legislation that we can loosely refer to as intellectual property laws. These laws address three main topics – copyrights, trademarks, and patents. It can often be difficult to determine when a product or service falls within one or the other classifications. In this post, we seek to answer the question of does the DMCA apply to trademarks?
The DMCA and Trademarks
When discussing trademarks, using the term “trademark” is a bit sloppy. The correct designation is “mark.” There are two commonly recognized types – service marks and trademarks. As you might guess, service marks apply to symbols that signify a service of some kind. Trademarks tend to be designations for products or companies.
Regardless, we’ll refer to both as trademarks for this discussion and video.
Could a Digital Millennium Trademark Act be enacted in the future? A few major online platforms such as Etsy and Kickstarter have lobbied for such legislation but without much success. One reason appears to be that the elements a party must prove to establish trademark infringement are a bit more challenging than what one finds with copyright infringement claims. Under trademark law, it isn’t enough to show a defendant copied the mark. A trademark holder must demonstrate the use of the mark by the offending party is likely to cause confusion with consumers. If someone posts the Apple logo in a meme on Facebook, Apple is going to have a difficult time meeting the confusion standard.
Returning to our original question – does the DMCA apply to trademarks? The law often is comprised of grey areas. This is not one. The answer is unequivocal – NO!
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