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Trademark Law and the Social Construction of Trust: Creating the Legal Framework for Online Identity

Publication Title

Washington University Law Quarterly

Abstract

Trust is the foundation of society for without trust, we cannot cooperate. Trust, in turn, depends upon secure, reliable, and persistent identity. Cyberspace is thought to challenge our ability to build trust because the medium undermines the connection between online pseudonym and offline identity. We have no assurances of who stands behind an online avatar; it may be one person, it may be more, it may be a computer. The legal debate to date has focused exclusively on the question of how to maintain real world identity in cyberspace. But new “social software” technology that enables communities from eBay to Amazon collectively to rate their members is giving rise to meaningful reputation in an online context. To determine what rules should govern online reputation and the use of such reputational data, we should look not only to constitutional, copyright, or tort law, but to trademark, the area of doctrine most closely analogous. Trademarks are a collaborative creation made by the source of the mark and the buying public, which associates the mark with that source. The public's interest in the mark circumscribes the property rights of the individual holder. By reasoning from trademark theory to create a new set of rules for online reputation we create incentives for the social construction of trust in cyberspace. One key consequence of this approach is the conclusion that in order to produce reliable and persistent online identity, past reputational data should be preserved, transparent, and widely shared.

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