eBay Obtains More Favourable Result in the US Than in France

In the previous issue of E-TIPS ®, "eBay Fined in France for the Sale of Counterfeit Goods" (Vol 7, No 2, July 16, 2008), it was reported that the Commercial Court of Paris had ordered eBay Inc (eBay) to pay substantial damages for failing to do more in preventing fake goods from being bought and sold through its online service. Almost simultaneously, in a similar situation when eBay was sued by Tiffany and Company (Tiffany), the US District Court for the Southern District of New York found no liability at all by eBay under a variety of causes of action from contributory trade-mark infringement to unfair competition, false advertising and dilution of trade-marks. Judge Richard Sullivan stated that the standard for contributory trade-mark infringement was not whether eBay could reasonably anticipate infringement by people selling Tiffany knock-offs; rather, it was whether eBay kept offering its services to sellers it knew, or ought to have known, were infringing Tiffany's trade-marks. Critical to the result was Judge Sullivan's finding that eBay did not exercise sufficient control over the items sold in the marketplace it had created to fix it with the high standard of liability proposed by Tiffany. The Judge concluded that eBay had taken reasonable steps to investigate and respond to complaints of trade-mark infringement and that Tiffany had an obligation to monitor the marketplace and to report suspected infringing products. Tiffany was reported to have decided to appeal the decision. For a news report from the New York Law Journal online service, see: www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202422982453 For the full reasons for judgment in Tiffany (NJ) Inc v eBay Inc, 04 civ 4607, visit: http://www1.nysd.uscourts.gov/cases/show.php?db=special&id=83 Summary by: The Editor