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eBay Beats Tiffany In Net Trademark Case
sm62704 notes a Reuters story reporting that eBay has beat Tiffany in court in a "knockout" decision. If this had gone the other way, not only would eBay be in trouble (especially after the loss of a similar case in France), but so would Net commerce as a whole. Tiffany seems certain to appeal. "All of Tiffany's trademark infringement claims against eBay were rejected — a knockout blow to the four-year-old lawsuit that had been closely watched by Internet companies as well as luxury goods makers seeking to stop the sale of counterfeit products online. Tiffany & Co. had alleged that eBay turned a blind eye to the sale of fake Tiffany silver jewelry on its site. EBay had countered that it was not in a position to determine which goods were knock-offs... and had said the jeweler did not adequately participate in eBay's programs that help brand owners prevent fraud. The judge... said he was 'not unsympathetic' to Tiffany and others who have invested in building their brands only to see them exploited on the Web. But he said the law was clearly on eBay's side."
any number of antique shops that routinely, perhaps unwittingly, sell fake Tiffany pieces
"Routinely" and "unwittingly" can be very different things. People in the antique business usually know when they're holding an actual piece of Tiffany silver work in their hands. And if a professional in that line of work can't tell the difference, then they've got pretty good cover if the real Tiffany comes knocking. But that's not what this is about - this would be more about someone setting up shop as a Tiffany dealer, as many busy sellers on eBay have essentially - and fraudulantly - done. It's not the occasional auction where someone is unloading grandma's old stuff and thinks they've got a Tiffany piece. It's the people who set up eBay stores and carry the whole product line, including obvious knock-offs of current-issue Tiffany products. Whole different thing.
Don't disappoint your bird dog. Go to the range.
If you'd like to read the actual decision. (PDF)
Ray Beckerman +5 Insightful
And it's particularly ironic since her biggest hit, "I think we're alone now" was a cheap knockoff of the original by Tommy James & the Shondells.
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We usually get so much inaccurate legal speculation, that it's a good thing to have original sources like that to link to.
To that I'd like to add that there is a type of fair use specific to trademarks and relevant to this case--nominative fair use. I mentioned that in my submission, but I guess this guy beat me to submitting it.
I'm mentioning it because, otherwise, we'll probably have someone trying to apply the four factor test from copyright law to trademarks once the issue comes up... :-)
- I Don't Believe in Imaginary Property
The two cases are quite similar, but the laws in France protect French companies almost as much as they attempt to screw non-French companies. Remember the anti-competitive suit against Apple for selling iPods & music to go on them?
The cases are similar in that both plaintiffs are luxury goods makers that don't like the fact that the gray market (legit goods being resold) is obscuring the counterfeit market. The companies' solution is to attack a (the) central point where the black and gray markets collide. In attempting to do so, they demonstrate their failing to understand (or unwillingness to admit) that the black market has and will always exist.
In the US, this case has shown that the burden of protecting a trademark falls on the trademark holder, especially when the market is as willing as eBay has been (right or wrong) to remove auctions that trademark holder's believe violate their trademark. France has determined that the burden falls on the marketplace to ensure that the trademark holder's trademark is protected. The French case has shown that not only is eBay responsible for preventing the sale of counterfeit goods, it is also responsible for preventing the resale of legitimate goods that the manufacturer opposes. From my comment on the French ruling:
What's especially stupid about this is that if LV winds up forcing eBay out of this category, 100 new markets will open up. This has already started with the counterfeit sellers who have been forced off of eBay. Example: You can't buy a gun on eBay. I think it was after Columbine that eBay voluntarily exited the gun category. Since then there are a bunch of auction sites specifically for guns. By keeping one big market, it will be far easier for LV, Tiffany, and others to manage the counterfit & legit gray market. This is basically another example of an old company failing to understand online commerce.
Take off every 'sig' for great justice.
I've tried reporting obvious counterfeits to ebay, and sellers selling nothing but them. To date, eBay has not removed a single item i reported or any seller. Why would eBay care? They make money off of each sale, but nothing off a pulled listing.
"Useless organic meatbag" -HK-47