The Link To Liability

Earlier versions of this article appeared in the March 2001 issue of Internet Law & Business and the February 5, 2001 issue of the National Law Journal

The ubiquitous act of linking one website to another has spawned many lawsuits claiming trademark infringement and dilution. Liability in these cases depends on who's doing the linking, where the linking leads, what the link reveals, and most important, whether there's a likelihood of consumer confusion or dilution. Even if the act of linking itself is not sufficient to create liability for infringement or dilution, it may nonetheless play an important role in those claims by supplying the "commercial use" requirement for a federal dilution claim or the "use in commerce" requirement for a federal infringement or unfair-competition claim.