A Man, a Plan, a Telemarketing Scam
Dish Network v. Siddiqi: A Rare Case of Vicarious Trademark Infringement
Vicarious trademark infringement cases such as the recently decided Dish Network v. Siddiqi are much less common than the contributory liability variety. Courts frequently reject vicarious trademark infringement claims because the plaintiffs fail to plead and prove them. The vicarious liability standard, whether based on joint-tortfeasor theory or agency theory, is simply more difficult to meet than the standard for contributory infringement.
The essential difference between the two forms of secondary liability lies in the nature of the relationship between the defendant and the direct infringer. In a contributory liability case, courts focus on whether the defendant knew of the wrongful activities of the direct infringer. However, when they consider liability for vicarious trademark infringement, they probe further: A defendant’s “[m]ere knowledge of the primary actor’s wrongful conduct” will not suffice. The plaintiff must plead and prove a business relationship between the defendant and the direct infringer, whether conceptualized as a partnership, joint ownership, or agency relationship. There is no such burdensome requirement for making out a claim for contributory liability, which explains why more secondary infringement claims are advanced on that theory.
In Dish Network, however, there was no such question. Continue…