A DMCA for trademarks undermines sustainable upcycling
Daniel R. Cahoy, 2023 – Robert G. and Caroline Schwartz Professor of Business Law, Research Director for the Center for the Business of Sustainability, Smeal College of Business, Pennsylvania State University “Trademark’s Grip Over Sustainability” Colorado Law Review, v94, n4, 6/1, https://lawreview.colorado.edu/print/volume-94/trademarks-grip-over-sustainability/ //DH
D. Take Care with Any Attempt to Create a DMCA for Trademarks
Finally, it is worth noting that the call among online sellers for more certain contributory liability is legitimate and reasonable. Although the Second Circuit’s Tiffany v. eBay[308] standard has been influential, it has the potential to be applied inconsistently across the country. However, proposed legislation that creates a “super DMCA” for trademarks[309] is likely to shift the balance far too much in favor of brand owners. It is critical that sustainability and broader upcycling advocates have a seat at the legislative table to ensure that any new regime provides appropriate defenses to inaccurate accusations of infringement or dilution. Moreover, a punishment regime such as the DMCA’s false claim section should be integrated as well.[310]