Tuesday

THE TRADEMARK TROLL IS SMALL ENOUGH TO SAY: TIFFANY I TOLD YOU SO

In November of last year I predicted that Tiffany would lose its lawsuit against eBay. And more recently, when eBay lost a similar case in France, I again stated that American courts would not allow old commerce to stand in the way of new commerce.

Now a federal district judge in the Second Circuit has ruled in favor of eBay. In a nutshell the judge concluded that eBay was not to be held liable for its general knowledge of counterfeit Tiffany jewelry being sold on its auction website. Taking action against specific sellers for specific goods after being put on notice by a Tiffany was sufficient. The judge also rejected Tiffany's claim that any eBay seller of more than 5 Tiffany branded items was presumably selling counterfeit goods.

As has already been noted this case stands in contrast to the recent French court decision that obligated eBay to determine the validity of all goods sold on its site and prohibited eBay from even selling genuine goods if such goods were being resold against the wishes of the brand owner-and its established channels of distribution.

Undoubtedly Tiffany will appeal this US decision. And undoubtedly eBay will appeal the French court's decision. If so, let me make a further prediction: a European Union court will overturn much of the French court decision and side with eBay. And the Second Circuit Court of Appeals will also largely affirm the lower court decision.

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