Although there are a wide array of unresolved trademark issues with regard to the Internet, this Comment will not address disputes involving anything beyond the visible content of an individual's website. Domain name and meta-tag issues, though often referenced in order to demonstrate trends in analysis, are not the subjects of this inquiry. Rather, this Comment will focus on the triumvirate of claims most frequently asserted against individual web masters in the battle over the propriety of consumer commentary: trademark infringement, unfair competition, and trademark dilution. A recent court decision, Bally Total Fitness v. Faber, provides an example of the analysis a court should engage in when considering whether or not a consumer opinion website violates the rights of a trademark owner." Section III of this Comment will describe this analysis in an overview of Bally. Section IV will discuss the Lanham Act's "use in commerce" requirement, scrutinizing recent approaches to this inquiry and illustrating how a broad interpretation of "use in commerce" and the tendency of courts to treat trademarks as property harms an individual's ability to engage in a dialog about products and services. Finally, section V will demonstrate why consumer opinion websites, even if held to be subject to suit, should not be enjoined from using trademarks. An examination of the statutory requirements demonstrates that such sites do not constitute infringement, dilution, or unfair competition.
Leslie C. Rochat, "I See What You're Saying": Trademarked Terms and Symbols as Protected Consumer Commentary in Consumer Opinion Websites, 24 SEATTLE U. L. REV. 599 (2000).