미국 판례법상의 그라이프 사이트에 관한 고찰

A battle for consumer mindshare between the trademark holders and the creators of gripe sites is raging on the Internet. Threats against gripe sites engaging in political speech proliferated due to overbroad trademark doctrines, which gained increasing acceptance during the 1990s. These doctrines equate commercial use with any conceivable effect on commerce, conflate an actionable likelihood of confusion with any mistakes by the careless or ignorant, and provide for summary revocation of domain names. Such lack of notice as to the legality of a gripe site will deter people from exercising their free speech rights of criticism and parody, resulting in chilling critical political and consumer commentary about trademark holders on the Internet. However, political and consumer commentary are communications promoted by the ideals of a democratic society. Comment and critique about public issues are important to the maintenance of our free marketplace of ideas. Gripe sites are a new and developing form of such commentary, similar in purpose to a picket line for a demonstration. It is a matter of public interest that consumers are well informed about the choices they make, and the Internet provides a venue virtually unlimited in its scope of audience and capacity to inform. The federal courts in U.S.A. have started to rein in these expansive trademark doctrines and to defend strongly the free speech rights of cybergripers to speak their minds. Courts are increasingly rejecting the notion that the analogy of trademarks as property is a sufficient basis for disregarding sensible limits on trademark rights. They are realizing that gripe sites cause little economic harm, and that no substantial economic benefit will be achieved by expanding trademark liability to the point where it can be used to threaten non-competitive and political speech. Law and policymakers should start thinking about an appropriate balance between protecting commercial trademark interests and facilitating free speech interests in domain names. Developing mechanisms that facilitate free speech in the domain space is an important next step in the emerging framework for Internet regulation. There are enough U.S. cases and arbitral decisions on record for the major policy issues to be identified. It is time to start putting together the competing thoughts in this area to develop a clearer policy about permissible and impermissible uses of domain names that correspond to a trademark. The creation of new and more balanced regulatory principles on the domestic and international levels between trademarks and free speech on the Internet may help in avoiding chilling critical commentary about trademark holders on the Internet. They would also potentially save money in Internet commerce by creating greater certainty as to competing interests in domain names and thus avoiding protracted and often costly litigation. Additionally, they would underscore the importance of free speech on the Internet as a guiding principle for future Internet regulation.