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Internet Intermediaries: Does One Definition Fit All? Information Meeting on the Role and Responsibility Internet Intermediaries: Does One Definition Fit All? Information Meeting on the Role and Responsibility of Internet Intermediaries in the Field of Trademarks, WIPO, September 17, 2012 Prof. Cédric Manara EDHEC Business School [Legal. EDHEC Research Center]

Definition § “Internet intermediaries bring together or facilitate transactions between third parties on the Definition § “Internet intermediaries bring together or facilitate transactions between third parties on the Internet. § They give access to, host, transmit and index content, products and services originated by third parties on the Internet or provide Internet-based services to third parties” • OECD, The economic and social role of internet intermediaries, 2010 3

Who? How? Where? What? 4 Who? How? Where? What? 4

Who? § Internet Access Providers • Orange, Comcast… • Libraries / Companies / Universities Who? § Internet Access Providers • Orange, Comcast… • Libraries / Companies / Universities / Conference centers… § Registries / Registrars • Verisign… / Go. Daddy… § Internet Service Providers • Amateur platforms ─ Forums, blogs, wikis • Commercial platforms ─ e. Bay Craigslist • Generative platforms ─ open: You. Tube, SL… ─ v. proprietary: Facebook, App Store… • Search tools § Payment systems operators • Pay. Pal, Visa… 5

Where? (is the information stored) § DNS • [+. tel case] § Own infrastructure Where? (is the information stored) § DNS • [+. tel case] § Own infrastructure § Third parties’ servers • Cogent, Amazon AWS… • Capacity to intervene on the content • Dependence 6

Where? (is the intermediary located) § States with an exemption regime • EU, US… Where? (is the intermediary located) § States with an exemption regime • EU, US… § Countries without specific rules • Effectiveness ─ e. g. (©) Napster Allofmp 3. ru 7

What? (do they store) § Features • Technical nature: always bits! • Formats: text, What? (do they store) § Features • Technical nature: always bits! • Formats: text, image, audio, code… ─ Representation of products: e. Bay, Rakuten ─ Digital products or services: i. Tunes Store, Google Play • Size: from one pixel to the whole web • Content origin ─ Themselves: On-demand video / music / e-books ─ Clients: commercial, amateur, hybrid ─ (or both) • Monitoring ability / TM filters • Difference in the liability regime TM 8

Digital content / Physical products 9 Digital content / Physical products 9

[Paris Court of First Instance, Google Books, Dec. 18, 2009] § “no commercial use [Paris Court of First Instance, Google Books, Dec. 18, 2009] § “no commercial use of the signs considered here is being carried out by the service in question since their only purpose is to inform the user of the identity of the publisher of the work mentioned in the results of his search, designating a publishing activity, whether of books or magazines, of borrowing books or a cultural activity” 10

What? (business categories) § B 2 B, B 2 C, C 2 C, B What? (business categories) § B 2 B, B 2 C, C 2 C, B 2 B 2 C platforms § Revenues • Free (advertising revenues) • Fixed prices / Auction • Multiple actors personal liability 11

What? (else) § Search tools § Advertising intermediaries § Social media variety 12 What? (else) § Search tools § Advertising intermediaries § Social media variety 12

How? (attitudes towards TM protection) § Disparity in means • Existence or absence of How? (attitudes towards TM protection) § Disparity in means • Existence or absence of Terms of Use • In-house team to handle trademark disputes? § Disparity in (re)action • Duty of care 13

Diverging policies [0] Diverging policies [0]

Diverging policies [1] 15 Diverging policies [1] 15

Diverging policies [2] 16 Diverging policies [2] 16

To. S of 10 social media Provisions related to brand protection Clause prohibiting any To. S of 10 social media Provisions related to brand protection Clause prohibiting any conduct that may violate the rights of others or be contrary to any existing laws or regulations Social media concerned Wikipedia, You. Tube, Blogger, World of Warcraft Clause expressly prohibiting the use of trademarks belonging Facebook, Twitter, My. Space, Sky. Blog, to others Second Life, Linked. In, World of Warcraft Wikipedia, Facebook, My. Space, Twitter, Clause allowing the publisher of the site to remove content Blogger, Skyblog, You. Tube, Linked. In, World liable to infringe trademark rights of Warcraft, Second Life Wikipedia, Facebook, My. Space, Twitter, Clause allowing the publisher of the site to close user Blogger, Skyblog, You. Tube, Linked. In, World accounts in the event of behavior infringing trademark rights of Warcraft, Second Life Clause through which the publisher of the site disclaims any Facebook, My. Space, Twitter, Blogger, responsibility for content (and makes the user wholly Skyblog, You. Tube, Linked. In, World of responsible) Warcraft, Second Life Existence of an online reporting procedure for litigious Wikipedia, My. Space, You. Tube, Blogger, content Sky. Blog Existence of an online reporting procedure specifically for Facebook, Twitter, Second Life, Linked. In infringement of trademark rights Clause prohibiting companies from promoting brands or using a personal profile for commercial ends (except with the Facebook, My. Space, You. Tube, Skyblog possible authorization of the site publisher) 17

Provisions can be exorbitant § Most of the To. S expressly forbid the use Provisions can be exorbitant § Most of the To. S expressly forbid the use a of a third party trademark • or any behavior which may violate third parties rights § To. S often go beyond legal provisions • e. g. (France) Price Minister e. Bay 18

Provisions can be vague § “It is often difficult to tell what may or Provisions can be vague § “It is often difficult to tell what may or may not be trademarked” § “However, use of designer logos and brand names without permission, such as Gucci, Nike, Louis Vuiton [sic !], etc. , is usually not acceptable” 19

In summary § Internet intermediaries are extremely diverse § … like the internet! § In summary § Internet intermediaries are extremely diverse § … like the internet! § Actionability depends on • who/when they are • what/how they do 20