Negligent omissions as a basis for holding online hosts liable for infringements of trademark rights: an Australian perspective

Accountability of ISPs and of landlords -- Trade Marks Act (1995) does not contain any provision for imputing secondary trade mark liability -- online hosts unlikely to be held liable under consumer law following the decision in Google v ACCC -- possibility of prosecution under the law of negligence -- Norwich Pharmacal orders introduced into Australia in Nokia v Truong -- idea of contributory trade mark infringement -- acquiredknowledge of infringement -- duty of care a precondition to a finding of liability due to negligence -- application of the neighbour principle -- nonfeasance -- use of online tools such as Google AdWords to infringe trade mark rights -- use of the automation defence -- Duffy v Google -- liability of ISPs when customers utilise P2P file sharing software -- Australian High Court has used three methods to determine duty of care, the incremental approach, the salient features approach and and examination of reasonable foreseeability and proximity.