Been Deep Linked? Apparent Authority Might Link You to Liability

Abstract

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." 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.