Negligent omissions as a basis for holding online hosts liable for infringements of trade mark rights : an Australian perspective

The Trade Marks Act 1995 (Cth) as it currently stands does not provide a remedy for trade mark owners against online hosts, in the circumstances where the services offered by such hosts are utilised by third-party users to commit trade mark infringements. There is also no comparable authorisation-type liability that could be made use of under trade mark law, authorisation being a concept familiar to the copyright domain. Holding online hosts liable as joint tortfeasors, or under the provisions of the Australian Consumer Law (formerly, the Trade Practices Act 1974 (Cth)) is equally difficult. In the circumstances, this article explores the possibility of holding online hosts liable for infringements of trade mark rights committed by third-party users, on the basis of common law principles applicable to cases involving negligent omissions.