D. Expansion of Inwood Standard to “Non-Product” Cases: The “Direct Control and Monitoring” Test: 2. Internet Activity
Internet trademark infringement activity typically has not involved the “product” paradigm contemplated in Inwood. Courts considering these types of cases have therefore had to determine whether to extend the Inwood standard beyond the manufacturer-distributor context, as they had done in the flea market cases, Hard Rock Café and Fonovisa, supra.
The standard for imposing contributory liability for trademark infringement on the Internet was first enunciated in Lockheed Martin Corp. v. Network Solutions Inc., 194 F.3d 980 (9th Cir. 1999) (“Lockheed II”), affirming 985 F.Supp. 949 (C.D. Cal. 1997) (“Lockheed I”), a case involving the domain name registrar, “NSI.” In Lockheed II, discussed in detail below, the court synthesized the analyses in Hard Rock Café and Fonovisa to conclude that “[d]irect control and monitoring of the instrumentality used by a third party to infringe the plaintiff’s mark permits the expansion of Inwood Lab’s ‘supplies a product’ requirement of contributory infringement.” Lockheed Martin, 194 F.3d 980, 984. The direct control and monitoring analysis has been applied throughout the Internet cases discussed in this section.
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