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While the Anticybersquatting Consumer Protection Act adequately addresses the legal difficulties associated with bad faith registration of trademarked names by nontrademark holders, e-exploitation of trademarks is still a problem for trademark holders. Unlawful e-exploitation of trademarks arises in a number of ways outside of cybersquatting from the use of the Internet to infringe and dilute traditional trademarks. In the case of unlawful e-exploitation of trademarks, as it is in the case of traditional unlawful trademark exploitation, the threshold question is whether there is a likelihood of confusion and whether there is dilution. Unfortunately, these questions are difficult to answer simply by applying traditional trademark doctrines. For example, does an unlawful use of a trademark as part of a meta tag yield sufficient confusion so as to satisfy a trademark infringement finding? Does the fair-use defense apply to the unauthorized use of a trademark in a URL and therefore result in a noninfringing use? In Qualitex Co. v. Jacobson Prods. Co. Inc., the U.S. Supreme Court set forth basic objectives of trademark law that are helpful in applying traditional trademark law to unlawful trademark e-exploitation. It stated that trademark law should simply protect consumers and prevent competitors from unfairly taking advantage of a trademark. The Court’s conclusions are bolstered by both a long history of judicial finding that emphasizes that trademarks protect consumers and legislative additions to the Lanham Act, such as the Federal Dilution Act, which is primarily concerned with free riding. More precisely, the Lanham Act seeks to protect consumers by preventing the use of trademarks that are “likely to cause confusion.” This provision covers confusion as to source of the good or service in question, and also confusion as to sponsorship and/or endorsement by the trademark holder. Additionally, the so-called unfair competition provision of the Lanham Act provides a similar protection from the use of an unregistered mark that is likely to cause confusion. The application of the “likely to cause confusion” test to Internet trademarks is the same as the test for traditional trademarks and normally involves seven factors: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of marks; (4) evidence of actual confusion; (5) possibility of bridging the gap; (6) sophistication of the consumer; and (7) good faith on the part of the alleged infringer. Courts usually refer to these tests as either the Polaroid test or the Sleekcraft test. See Polaroid Corp. v. Polarad Elect. Corp. and AMF Inc. v. Sleekcraft Boats. In short, while the Internet may bring a novel fact into a case, traditional trademark case law is sufficiently relevant to properly assess whether an unauthorized use of a trademark on the Internet is an infringement. It should be noted that the Lanham Act also requires that in order to find a violation of the act, the mark use must also be in commerce. Thus, the unauthorized use of the mark must normally be used in connection with a sale of goods or services. Normally, a trademark holder is most interested in preventing a competitor from using a mark without authorization. However, a trademark holder is also interested in preventing both competitors and noncompetitors from diluting the effectiveness of his or her mark, both on the Internet and in traditional commerce. The Federal Dilution Act applies where unauthorized trademark users cause actual “dilution of the distinctive quality of the mark.” In Ringling Bros. Barnum & Bailey Combined Shows Inc. v. Utah Div. of Travel Dev., the court found that to establish dilution, a trademark holder must show that:

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