"Damage can occur very quickly in cyberspace," said Georgetown University law professor and cyberspace expert David Post at a Federal Trade Commission gathering in Washington last week. "There is more discussion of what copyright law should be than at anytime in history."
Attorneys, marketers and the federal government all are struggling with the protection of intellectual property in cyberspace.
But it's a nebulous world where brand assets are routinely jeopardized without anyone ever knowing.
"How do you enforce copyright law [in cyberspace]? There would have to be some sort of alarm that goes off when a copyright is being used," said Carla R. Michelotti, VP-associate general counsel, Leo Burnett USA, Chicago.
Take Barbie, for example.
Early this year, Mattel attorneys found Urban Desires, a Web magazine (http://desires.com). What was more interesting was what was inside the magazine: pictures of Mattel's vaunted doll in what could only be called compromising positions. Mattel went to court, asking for a cease and desist order mandating that the Barbie trademark and image be taken off the site.
"We took action because they were using Barbie in a way that was unauthorized," a Mattel spokeswoman said. "Corporations need to know what's out on the Web and be able to protect their trademarks and brand images on it."
"There is no legal authority that governs the Internet," said David Maher, a partner with the law firm Sonnenschein Nath & Rosenthal, Chicago, and co-chair of the International Trademark Association.
That's something not everyone wants to change. Online services have formed self-governance committees to police their worlds-not only for brand infringements but concerns including child pornography and libel.
In September, the government hoped to help quell marketers' fears with the "Intellectual Property and the National Information Infrastructure" report outlining its proposals for intellectual property laws. Its conclusion: "We believe that the copyright laws that stand today are applicable in cyberspace," said Terry Southwick, attorney adviser in the office of Legislative & International Affairs, a department of the Patent & Trademark Office.
Trademark attorneys think otherwise: "A lot of serious thinkers on the subject believe that the proposals are headed in the wrong direction," Mr. Maher said.
Many marketers have placed trademark and copyright information directly on their online materials. But in an environment where capturing a product image or spokescharacter graphic is as easy as the cut-and-paste function on a computer, those protections may not be enough.
As a result, "Advertisers must protect and police their trademarks in cyberspace," said Ms. Michelotti, who also spoke at last week's FTC conference.
Even registering its own name on the Internet can be a problem for a company.
"There is no legal precedent for the allocation of domain names," said Mr. Maher, who helped McDonald's Corp. secure the name "mcdonalds.com" from a journalist who had registered it on a whim.
Domain names function as online addresses and are registered through Network Solutions, Herdon, Va., which doles them out on a first come-first served basis and doesn't check for trademarked or copyrighted information.
Perhaps with this in mind, marketers have been staking out domains in advance of development plans. For instance, Procter & Gamble Co. has licensed names ranging from pampers.com to tide.com, but has only opened one Web site to date, for Hugo Boss fragrance (http://www.wordslam.hugo.com).
The next year may be a bellwether in the development of cyberlaw. Until then, as is the case with much of the Internet, it's every man-or marketer-for himself.
Kim Cleland contributed to this story.