The wrangle between Tiffany's and eBay prompts me to make a prediction. Tiffany's will lose. Oh the court might throw them a bone- but they will not succeed in forcing eBay to come up with a method to prevent all counterfeit goods from appearing on the auction site.
Why can I make such a prediction? Because the law will not normally stand in the way of commercial progress. One of the first cases I remember from law school involved a disgruntled homeowner who sued a nearby steel mill for ruining his home- by depositing a thick layer of red dust over the entire neighborhood. Was the dust a problem? You bet.Did the dust reduce the value of the property? Without a doubt.

But to find for the homeowner would have meant shutting down a steel mill. Because hundreds, if not thousands of other homeowners would also have sued. And, at the time of the lawsuit, the steel mill employed thousands and it could not do much to reduce the impact of its operations.

And so it is with eBay. To force eBay to disassemble its business model or otherwise cripple itself- at a time when eBay is making a good faith effort to stop bogus activities on its site- means shutting down a contemporary steel mill. Ain't going to happen.

And another thing. If one searches for Tiffany on eBay one is directed to many sellers offering what they claim are genuine Tiffany's goods- with a blue box or other trade dress that appears entirely proper. How do scores of vendors purchase authentic looking Tiffany's boxes? One of Tiffany's most popular designers is Elsa Peretti. Her heart necklace is a true classic. Many such necklaces are offered on eBay. If these necklaces are bogus- and one cannot tell from the individual listing- who is making all of these bogus necklaces? Even if eBay did not exist it seems that Tiffany's might have a problem.


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