Congress is better – it creates a clear, predictable standard – court rulings are limited to facts of particular cases

Despite the opportunity for judicial action, trademark owners and ecommerce platforms’ interests would ultimately be better served by Congressional actions. Additionally, Congressional actions would fall in line with the purposes of trademark law to provide a national system that protects the owner of a federally registered mark.183 This is true for multiple reasons. First, it is unlikely that the Supreme Court will adopt any standard or test that would be clearer and more instructive than specific legislation because of the inherent limitation of a judicial ruling that it will only entertain the scope and facts for the specific issues presented by a particular case. Moreover, as with most common law doctrines not rooted in specific legislation, even if the Supreme Court clarifies the Inwood test, different standards or interpretations would still likely appear in the district and circuit courts across the country. Therefore, out of all the possible solutions proposed above, amending the Lanham Act with a safe harbor provision similar to section 512 of the Copyright Act would likely serve the interests of trademark owners and e-commerce platforms most effectively.