Current trends in trademark law have not met the issue of deep linking with open arms. To date, there is a dearth of cases that touch on deep linking and trademark infringement. Cases such as Ticketmaster Corp. v. Tickets.com dismissed claims of deep linking as trademark infringement with little explanation, simply stating that deep linking itself is not a trademark violation absent “confusion of source.” [1] Yet, there is no case to set the boundaries at the other end of when deep linking would be trademark infringement; it can be implied then that the traditional tests of likelihood of confusion would most likely be applied to find an act of deep linking as trademark infringement.

 

However, the perils do not end for the website owner that is being deep linked from another website and having little means to stop this from occurring. Website owners that are being deep linked can also potentially face liability under the agency theory of apparent authority. Consider the following hypothetical.

 

CELL-X is a popular manufacturer and seller of cellular phones. In addition to distributing and also selling their products through authorized locations and CELL-X company stores, they operate and maintain a website. The website consists of a homepage and interior pages which contain information on the details of the different cellular phone models. Transactions of sales of cellular phones can also occur in the interior web pages of Cell-X’s website; Cell-X states in its purchase web page (and not on any other webpage such as the webpage of each specific model) that purchases via the internet will have an additional 90 days of warranty on top of the standard one year warranty. At the bottom of all the web pages, Cell-X has disclosed the statement, “CELL-X and its logo are registered trademarks.”

 

InterABC is a cellular phone distributor and re-seller. This company sells various brands of cellular phones, including Cell-X, and cellular accessories to the public. However, InterABC is not endorsed, authorized, nor licensed by Cell-X to sell Cell-X brand products. InterABC also operates and maintains a website allowing the internet consumer to browse and purchase the cellular phones InterABC carries. Specifically, InterABC deep links to Cell-X’s interior pages on all Cell-X cellular phone models and products.

 

Consumer Z is in the market to buy fifteen cellular phones for all his family members. By scouring the internet, Z finds InterABC’s website advertising cellular phones for a reasonable price. Z clicks on InterABC’s website hoping to find more information about Cell-X phones and clicks on the link to read more about Cell-X phone model 100A. This page lists the features of model 100A such as a four hour battery life, tri-band mode, a one inch color screen, and an additional one year warranty on top of the original warranty of one year. [2] There is another link that the Z can click on to read even more about model 100A; Z clicks on the link and realizes that the web page he just clicked to open is deep linked to Cell-X’s interior web page for model 100A; this page offers even more technical details of the cell phone such as measurements and accessories. Z is under the belief that InterABC is an authorized reseller of Cell-X products. Z is now quite sure that he wants to purchase Cell-X 100A cellular phones; in addition to the reasonable price that InterABC is selling the phone at, Z notices that buying the phones online comes with an additional one year warranty. Through a secured server, Z inputs his credit card and shipping information, and the cellular phones are subsequently shipped to him.

 

After one and one half years of use, two of Z’s Cell-X 100A phones abruptly stop working. Recalling that since he bought the phones from the internet, he has an additional one-year warranty in order to get them repaired or replaced. However, when trying to contact InterABC, he learns that they have since gone out of business. For Consumer Z, his next reasonable approach would be to contact Cell-X. However, Cell-X cannot honor Z’s warranty claim since it claims that it only offers an additional 90 day warranty. The statement that InterABC made on its website was false, and InterABC is not authorized by Cell-X.

 

The issue then becomes whether Consumer Z can hold Cell-X responsible for warranty claims under apparent authority. Since case law has never considered whether deep linking would ever constitute apparent authority, the next question to ask is whether the traditional cases of case law can shed any light on the issue.

 

Tan Pham*