Jewelry giant Tiffany & Co. is appealing a recent federal court decision that cleared eBay from responsibility for counterfeit items which appear on the online auction site. Last July, a US District Court in Manhattan ruled eBay isn't obligated to actively monitor and remove listings that infringe on the jeweler's trademarks. …
by tiffany's argument
By tiffany's argument, wouldn't that make a landlord responsible for what retailers on their land sell? It's not mcdonalds fault I'm fat, it's the shopping malls... I'm suing!
Well, yes, actually.
A landlord can be held responsible if they persistently allow criminal activity on their land - I know of one local case where someone was prosecuted for it (turning a blind eye to a canabis cafe in their premises).
Primary responsibility lies with the tenant of course.. just as in ebay primary responsibility lies with the seller. OTOH in ebays case they're just pretending that this stuff doesn't go on *and* profiting from it (profiting from crime is itself a crime btw.) then yes they need to sort it out.
It is never the responsibility of the victim (tiffany's) to investigate crimes against, themselves, as the previous judge seemed to believe.
Yes, but in this case Tiffany wants the landlord to pro-actively and regularly search the all tenant's house to see if they are growing cannabis because *one* tenant was arrested for doing so.
No, I agree that eBay has the responsibility to pull a listing (and pull the plug on the seller's account) if presented with evidence of fake goods. It is *not* up to eBay to decide whether the goods are real or false. I mean, suppose my grandmother dies and leaves me with her collection of Tiffany lamps (I don't have a living grandmother BTW)? According to Tiffany, I would only be allowed to put them up for sale a few at a time. Bugger that.
It has always been the responsibility of the trademark owner to protect the trademark. *And*, to keep that trademark, they must pursue *all* infringements that come to their attention. So Tiffany - suck it up and set up an Internet division.
Having said that, I am not a big fan of eBay. It's OK on occasionalpurchases, but they are getting ridiculous in their fees and paypal (mis)rules.
eBay is not a landlord
I don't know what the judge is looking at for comparison, but eBay *can't* check authenticity, so this makes sense. All they have to go by is someone's digital photos. Maybe they're pictures taken out of a catalog and not even photographed by the seller. Maybe a dishonest seller doen't intend to ship the item pictured. Maybe they don't intend to ship the buyer anything at all- how's eBay going to proactively know this?
It's stupid to expect them to enforce copyrights unless some particular auction is an incredibly obvious ripoff. If there are reports of someone selling a "'music collection" that's a got a pile of CD-Rs pictured, they can step in. Any action beyond that is unreasonable, and a waste of time fighting the inevitable lack of proof whether some thing is or is not genuine.
Maybe eBay could pay a little more attention to high-value auctions, but I'm sure there are ripoff Casio watches out there too, why the hell should one manufacturer get special consideration?
eBay's Next Big Service?
I wonder (really) what the auction house liabilities are. For example, would Christie's or Sotheby's held libel for forgerys sold at auction if they had not apprised and certified the works themselves? Certifying auctions could become big business for eBay.
The coat, cause I've left. Could have been the black helicopter for eBay.
Must be nice to convince German and French courts that someone else has to pay to enforce a trademark.
It isn't that hard to police eBay for your own trademark, I'm sure some Indian company will do it affordably 24/7, probably for a few hundred handbags worth of profit every year. If eBay provided a fast access method to mfg, the whole process could be automated (that is, every time someone selling "tiffany" or "tifany" or ... goes up, email email@example.com with the listing and let the recipient at tiffany.com wank it over and decide what to do).
Of course this means firstname.lastname@example.org will BIN a lot of tiffany stuff that is going cheap, maybe even turn a profit by getting a jump on everyone else....
Realistically though, just checking 1x/hr is probably enough to stifle the counterfeiters, if they don't make money they will find other channels. Capitalistic wack-a-mole at work.
and other sellers of over priced tat would like to stop ebay from selling their stuff at all. They want you to go to an approved store and buy for the approved price.
If stopping the sale of bootlegs also stops the sale of real used / grey market items as a side effect BONUS!
They probably want to stop all sales legitimate or otherwise.
They want to prohibit a healthy used market that is competing with their new sales.
I think we're alone now...
oops wrong tiffany...
If you can't police, you can't be expected to.
The basic problem is that Tiffany's feels that eBay is facilitating illegal sales from the moment an advertisement is placed on their system, rather than at the point of discovery. Much like a landlord cannot be held accountable for the actions of a tenant who goes to great lengths to seem a normal tenant, so too can eBay not be held accountable for the actions of their users until they are found out. You cannot police something if you have no investigative powers, and eBay most certainly does not - and legally cannot - have those.
Tiffany's case differs from the Vitton case in that Vitton does not allow reselling of its products. If your dearly departed grandmother leaves you a Vitton handbag, then according to the Vitton equivalent of an EULA, it may not be sold on by you: only authorised Vitton resellers may do this (although it says nothing about trading it or giving it away to the best of my knowledge). Tiffany's has no such restriction on their products, and as such they're going to have to severely warp the law before they can win this.
If EBay are adjudged as not responsible for the policing of their own auctions for counterfeit goods unless notified as regards specific products, how can You Tube be held responsible for the posting of content that may infringe the rights of a copyright holder as noted in the ongoing Viacom case?
I am aware that no official ruling has been made re YT v Viacom but it would seem the same principles apply?
But then, what do I know... US law is a pigs ass of mumbo jumbo and its judges are about as consistent in its application as something very inconsistent.
What eBay should do...
After beating Tiffany down again for being so stupid and being too lazy to enforce their own trademarks...
Is to develop a digital certificate system that will enable eBay users to see at a glance whether a seller is a registered seller for a particular item, eg Rolex watches or whatever it is that Tiffany sells. Even better, charge Tiffany through the nose for the service and claim its the only way they can protect their trademark (because its a good way to see at a glance whether something is geniune or not, whether it has Tiffany's approval)
Whatever happened to caveat emptor?
Look, if something is too cheap, it's almost certainly counterfeit. That applies to Tiffany lamps bought from eBay, or Louis Vuitton handbags bought in a gift shop in Greece. It's ridiculous to expect eBay to police everything on the site. In the end, a little common sense by the buyer is called for. And if they haven't got that common sense - well, it was P T Barnum who said "It is morally wrong to allow a sucker to keep his money."
Ebay don't police their site properly
Ebay are very reluctant to remove items and users. I've reported plants that have obviously been poached from the wild on there and ebay do absolutely nothing.
No doubt Tiffanys have constantly been telling ebay what's on there and ebay's inaction has led to this case.
Doesn't MS already have some special access
where they can log onto eBay and kill auctions for illegal software?
If so then surely there is a precedent and Tiffany can get an access like that.
ebay is not a landlord
It's an auction house, and an auction house does have a responsibility to verify the items it sells as genuine.
From above (something I hadn't heard before):
"Vitton does not allow reselling of its products."
How does that mesh with the Unfair Terms in Consumer Contracts legislation? Surely forbidding resale is against the law? (Especially of something physical...)
Vitton does not allow reselling of its products
If that's true, then fuck that!
In the US, first sale doctrine. In the UK (and lots of places in the EU, such as Germany), such an EULA is unenforceable (legally, anyway, but your ISP can be easily told to block it and they'll bend you over rather than expend effort contesting).
Is this the same Tiffany that was cuffed for rebranding Rolexes?
eBay has a system for members of the public to notify them of counterfeit goods and several of us are quite happy to flag obvious fakes. From what I understand, they are usually taken down fairly quickly if there are enough notifications.
However, it's a little convoluted and requires a bit of copy/pasting and clicking through to get to the form. If it were easier to mark auctions as suspect, more counterfeit items would get stopped.
...to police this, eBay would need to know complete details of every product ever; and how to tell fakes from bad photography. That's silly.
In this country, there is a direct responsibility for any (physical) auctioneer to pull an item from auction if he believes it is a fake. Regardless of the nature of the item.
I remember this happening on one of those day-time TV 'antique' shows: the item in question was ancient, and no-one was going to complain about it being fake - the item was more valuable as a result - but could not be sold. Not on TV, anyway!
If eBay finds a seller who lists more than a dozen items of this kind in the space of a year or so, then that is a very simple test to administer, at which point the account should be suspended pending proper investigation, anything less is turning a blind eye.
To be honest, eBay are at fault here
So, basically eBay have found a way to print money. They allow people to auction (and retail) and old shit to anyone else, and just sit in the middle and skim of the money that changes hands. Now, they are either an auction house or a retailer. If they are an auction house, then we have plenty of examples of auction houses already around the world, and they retain experts to judge on whether something is real or not before listing, or they list things as unknown origin since the auction house will be involved in putting together the details for the listing. If they are a retailer then they are responsible for everything being sold, and they can't claim that they are just facilitating retailers because their model is essentially the same as the Amazon reseller model. What eBay have tried to do is create a low cost method of skimming money, without fulfilling their obligations under the law. It's why eBay has become the biggest fence in the country (having found a stolen laptop of mine on eBay a few years ago, I have first hand experience of this).
All eBay would need to do to be a responsible auctioneer would be to insist on close up photos of all serial numbers and authenticity documents. With prosecutions for fraud ensuing if people try and fake these (by photographing a different document and then sending a fake product for example). It wouldn't be hard to do, but given that a large percentage of eBay's money comes from fencing stolen property and facilitating the sale of cheap knock-offs, they wouldn't want to take that hit on profits unless forced to.
Unrealistic people on here...
"All eBay would need to do to be a responsible auctioneer would be to insist on close up photos of all serial numbers and authenticity documents."
Many items which are sold don't have such things. For instance, most Sennheiser headphones for sale on eBay are fake. How do I know? Because, as I said above, they are far too cheap. But they don't have any serial numbers that I'm aware of. And even if they did, what's to stop you from making up a serial number? Who knows if it's right or wrong? Sennheiser haven't got the time to check them all, and neither have eBay. It comes down to buyer beware, every time.
Some people just want everything on a plate - they want to buy Tiffany jewellery at ridiculously cheap prices, and also have a guarantee that it's real and not stolen. Sorry - can't be done. If it's ridiculously cheap, either it's fake or it's stolen. Work on that assumption, and you won't go far wrong.
If Tiffany uses this information, during the appeal, I bet they could win it!
No that simple
I few people have expressed the thought that if it's ridiculously cheap, THEN the buyer should beware. What if it isn't ridiculously cheap? Are we saying all someone selling a fake has to do is charge more?
The answer is for any company producing anything of (excessive?) value to now begain manufacturing goods with a better tracking and identification system. To learn from their mistakes that if they want a 3rd party to authenticate something, they have to provide the reasonable means to do so and having not done so in the past they can't reasonably expect anyone else to authenticate for them.
If they facilitated this then ebay should make at least an attempt to work with the fraud department of such companies. I can't feel too badly for Tiffany though, that's the kind of situation a company places themselves in when something really shouldn't have the value a few obscure buyers place on it, and it's the cost of doing business today that Tiffany is welcome to lower their prices if they feel the need to stay competitive.
Certainly eBay would much rather auction everything they can to skim off their profit but almost anything could be a fake even if the profit isn't so large. To a seller it could be a pretty big incentive even to make 40% addt'l profit with fakes of lesser valued items. eBay isn't going to give up profits, so do we want them to more actively police everything at a higher cost to sellers and buyers? If anything an auction has to be a buyer's market.
Paris, because being the real thing is overrated.
Ebay's Business Model
Has reached the end of its life as far as auctions are concerned.
If Ebay wants to keep doing auctions (a questionable decision, in fact), they need to build a new model from the ground up that deals with the many wrongnesses in the current model, among them the issue of counterfeit goods. Their current model just grew, like Topsy, and we all know that kind of thing eventually digs its own grave.
Ebay and auctions: I just read the other day that auctions now account for 43% of Ebay's revenue. It may be that the online auction business has a finite size limit and they've reached it. Sales a la Amazon are now more important to them, and I can foresee the day when Ebay will junk the whole auction side of their business.
Ebay auctions have had a good run for well over a decade, but if your life depends on them, it's time to end your dependence.
@ Tony Hoyle
>>>A landlord can be held responsible if they persistently allow criminal activity on their land - I know of one local case where someone was prosecuted for it (turning a blind eye to a canabis cafe in their premises).
Yes, but to be such an accomplice, the landlord must know precisely what is happening, and precisely who is doing it. Your argument actually supports the lower court's ruling.
>>>Primary responsibility lies with the tenant of course.. just as in ebay primary responsibility lies with the seller. OTOH in ebays case they're just pretending that this stuff doesn't go on *and* profiting from it (profiting from crime is itself a crime btw.) then yes they need to sort it out.
Trademark infringement is a civil offense, not a criminal one. There is no crime here.
>>>It is never the responsibility of the victim (tiffany's) to investigate crimes against, themselves, as the previous judge seemed to believe.
But as there is no criminal offense occuring, the only issue is that of Trademark violation, which is entirely the Trademark holder's responsiblity to enforce.
...ever tried to email eBay? About anything? Do you only ever get an auto-response that bears about as much relevance to your questions as would a recipe for poo soup? I've reported a number of items as fake on eBay; guitars, software, etc and they just ignore you. I've been through the loop with them regarding trying to sell one lousy bottle of unwanted perfume for the missus and after a million emails I couldn't get them to answer one of the questions, not even refer to the fact that I've asked a question. It's all: "At eBay we always try and ensure a safe environment to blah blah blah....and...we're sorry that you're not happy with our reply but at eBay we always try and ensure a safe environment...etc"
I believe that there are thousands of users out there who can demonstrably prove that eBay don't list to their users and in particular don't listen to reports of counterfeit goods, and thus do not take appropriate action and therefore are liable for litigation by a brand-holder. Their argument falls apart. Basically they couldn't give a flying-fyck about anyone as long as they sell stuff all day long. They don't care if it's counterfeit because when it sells, they make money.
I'm no supporter of Big Corp or Brand holders at all but also can't stand lying and general bullshit, the likes of which eBay are guilty of thousands of times per day.
I wish that google would get it's finger out and launch an auction site, with fanfare and a huge exodus of users. It'd probably be pretty good 'n all.
May not be a real penguin...
Jonathan hit the nail on the head
Why on earth didn't Tiffany contact eBay and say "Hi. Erm. Let's both make more money!"
Of course as Thomas Baker says if Tiffany had tried to email them and been hit by the auto generated replies (not only that but they delay them to try and ease you into apathy) then I hope the judge takes that into account.
eBay should be seen to have taken all reasonable steps, if they haven't then they need their knuckles rapped.
"Trademark infringement is a civil offense, not a criminal one. There is no crime here."
Actually, if you make a profit from it (as in the case of ebay and the seller) it becomes a criminal offence.
"But as there is no criminal offense occuring, the only issue is that of Trademark violation, which is entirely the Trademark holder's responsiblity to enforce."
Again, if you make a profit from it, it does become a criminal offence.
You ask "why the hell should one manufacturer get special consideration?"
The reality is that at least one manufacturer does get special consideration from ebay and that's Microsoft, who get to troll through the auctions and pull anything they don't like.
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