(C) Acceptable Unauthorized Use

145 Legal systems may provide exceptions for the ‘fair use’ of a sign that is protected as a trademark.²³⁹ Such exceptions often apply when a sign is used fairly and in good faith in a purely descriptive or informative manner. It is also often stipulated that such use should not extend beyond that which is necessary to identify the person, entity or the goods or services, and that nothing is done in connection with the sign which might suggest endorsement or sponsorship by the trademark holder. Such exceptions may be equally applicable when a sign is used on the Internet.²⁴⁰ Other examples of acceptable unauthorized trademark use include use in a

non-commercial context or use that is protected by the right of free speech, such as consumer criticism expressed in relation to a particular trademark.²⁴¹

146 Since approaches differ from country to country, international harmonized criteria could increase predictability in this context, for the benefit of participants in electronic commerce. It would not be realistic, or for that matter desirable, for such a harmonized approach to attempt to regulate every new means of using a distinctive sign on the Internet. In order to be technologically neutral, any attempt might only seek to identify general standards for distinguishing acceptable from unacceptable practices. In this respect, two different approaches might be useful: an attempt could be made to develop criteria concerning unacceptable use, or alternatively, definition could, in a general way, be given to forms of ‘fair use’ that each country would treat as acceptable in its territory.²⁴²

(D) Global Effect of Injunctions

147 The scope of a trademark right is determined not only by defining when such right is infringed, but also by specifying the remedies available to the rightsholder when an infringement has taken place. If a trademark right has been infringed by the use of a sign on the Internet, the question arises whether its owner should be able to demand, with the help of the courts, that the defendant cease every use of the sign throughout the Internet?²⁴³ Such an injunction would have an effect that is as global as the Internet itself. If traditional trademark law is to be translated into cyberspace, a national (and thus territorially limited) trademark right should not give rise to an exclusive right throughout the worldwide expanse of this medium. It would, therefore, be appropriate if available remedies were, as far as possible, limited to the territory for which the owner holds an exclusive right.²⁴⁴ Courts might have to take a creative approach in framing equitable relief, such as obliging the user of a sign on the Internet to take reasonable measures for avoiding contacts with the territory in which the trademark owner holds an exclusive right. This could be effected, for example, by placing adequate statements on the website (e.g., disclaimers, as above), by using technical mechanisms to block access by Internet users located in a particular country, or by refusing to deliver goods or services to customers located in a particular territory. Concurrent users could also be encouraged to share a common gateway page or portal, or to mutually provide links to their respective websites.²⁴⁵

148 Internet-wide injunctions, however, should not be completely excluded as a possible remedy. Especially in cases where the use of a sign on the Internet has intentionally and in bad faith targeted a trademark right,²⁴⁶ it may be appropriate to prohibit every form of use of the conflicting sign on the Internet in order to remove its effect on the territory (or territories) in which the trademark enjoys protection, and to prevent such use from violating the legitimate interest of the trademark holder.