Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Internet Law & StrategyKickerFeaturesTopicsTechnology Media and TelecomSectionsNewsLJN Newsletters

<i>Tiffany v. eBay</i>

By Roberta Jacobs-Meadway
July 30, 2008

The recent decision in Tiffany v. eBay, No. 04 Civ. 4607 (RJS), represents a thorough and well-considered exploration of the basis for finding secondary liability in the electronic marketplace for those who facilitate the sale of infringing goods without even selling a product and, conversely, the way for the maker of the marketplace to avoid liability for infringements by those who sell on its site.

The issue of direct liability is tied to the scope of the defense of nominative fair use: the rights to advertise the availability of trademarked goods by the use of the trademark, whether or not some of the offered goods are counterfeit, and whether or not some or all of the trademarked goods have been diverted from the manufacturer/trademark user's authorized channels of distribution.

The issue of secondary liability is tied to whether or not it sufficed for eBay to be aware that Tiffany counterfeits were being sold on eBay. Tiffany argued that it should suffice that eBay was aware that counterfeit merchandise was being sold for eBay to be obligated to take affirmative pro-active measures to stop the listing of counterfeit products. The determining factor for the court in discounting this argument was the Supreme Court's decision in Inwood Labs, Inc. v. Ives Labs, Inc., 456 U.S. 844, 854 (1982). Simply put, generalized knowledge that counterfeiting was taking place did not suffice to impose any obligation, or liability, on eBay. Specific knowledge about which items are infringing, and which seller is listing the items, is required to be shown before any obligation to act could properly be imposed on eBay.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It Image

Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?

Bankruptcy Sales: Finding a Diamond In the Rough Image

There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.

The DOJ's Corporate Enforcement Policy: One Year Later Image

The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.

A Lawyer's System for Active Reading Image

Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.

Blockchain Domains: New Developments for Brand Owners Image

Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.