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Goldman on Online Word of Mouth and Its Implications for Trademark Law

I always learn a lot from Eric Goldman’s presentations and blog, and today was no exception. Though we have some disagreements on search engine regulation, I’m always keeping track of his position! more after the jump….

Goldman noted the many social benefits from online word of mouth. Consumers rely very heavily on what peers have to say. TM owners should bear accountability for their choices; this is a way for consumers to assure accountability. The internet is helping the invisible hand to work by “perfecting” information; a market mechanism can take effect as online word of mouth helps or hinders mark owners.

But trademark owners might hinder this free flow of information about brands. They can use their brands to create a “lopsided information economy;” if consumers only find positive commentary, it’s not really credible. We reduce the cognitive authority assigned to “shills.”

Goldman’s talk reminded me of Posner’s analysis of the importance of independent reviewers in Ty Inc. v. Perryman (which I discuss here). If all reviews have to be licensed, that would destroy interest in reviews. So perhaps the copyright style of privileging of reviews should migrate to trademark (a point perhaps already made in Goldman’s Deregulating relevancy). But Goldman notes that “fair use” is a very narrow “bail out” in TM. So perhaps only the policy behind Perryman can be applied.