By John Palfrey, Rafal Rohozinski, Jonathan Zittrain, Ronald Diebert
Reviews on a brand new iteration of net controls that identify a brand new normative terrain within which surveillance and censorship are regimen.
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Extra info for Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace
Under tests widely adopted by state and federal courts alike, knowing appropriation often counts as an indicium of confusion. Of course, in logic, knowing appropriation alone is no such thing. The junior user may simply admire another’s mark and conclude, quite sensibly, that it would serve no less admirably to identify his own separate (or very different) goods or services in the marketplace. The test of infringement is confusion or its likelihood, not appropriation. Knowledge of appropriation may be a necessary component of an intent to confuse.
14 u n fa i r c om p e t i t ion a n d t r a de m a r k s A trade secret cannot be maintained in knowledge generally known or easily discovered. A biscuit kitchen (of the sort to be found everywhere throughout the American South) can claim no secret in its knowledge that most biscuits are consumed in the morning. This is common ground. Even if an employee were in fact to seize upon that insight for the fi rst time as a result of his employment, he would nevertheless be free to carry the knowledge away with him and use it in his own business later.
Abandonment or misuse of the mark can work a forfeiture of that right, but the right does not otherwise expire of its own accord. The classic test of 27 u n fa i r c om p e t i t ion a n d t r a de m a r k s infringement is whether a junior user’s use of the mark is (or is likely to be) confusingly similar to the senior user’s use of the mark. 63 We do not tolerate misrepresentations by competitors, especially when they are deliberate, dishonest, or unfair; nor do we accept the inefficiencies that follow on the heels of confusion.