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back to article eBay not obliged to protect trade marks, says High Court

Online auction site eBay has "no legal duty" to protect other companies' trade marks or stop its sellers from infringing them, the High Court has said. Cosmetics company L'Oréal has failed to show that eBay was jointly liable with the sellers of fakes and illegally imported goods and had "participated in a common design" to …

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Pirate

Can anyone else see similarities between this case

and a recent high profile case in Sweden to do with a Pirate Ship.

I guess eBay had more money to fight the case. I would like to believe it came down to pure LAW, but I doubt it.

I do love the ad's on eBay now. How much would you pay for this teddy bear? If you buy it too cheaply you are funding terrorists and risk endangering your children. I wasn't aware that if you buy stuff full price the manufacturer is offering you insurance that you kid won't kill themselves with their teddy.

Nice to know they caare about the children and not just profits

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Anonymous Coward

meh

If a market management (as in one of those places lots of stalls are set up) group or car boot sales runners are not responsible for fakes sold by stores in their "community" then ebay shouldn't be either. If they are responsible then so should ebay.

It's nothing like the pirate bay situation.

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Anonymous Coward

Good

Incidently, in my opinion trademarks should not prevent people from selling items that are designed to resemble goods sold by a trademark owner, provided that the seller makes it clear that the items are not "genuine", that is, they are not licensed by the trademark owner. The purpose of trademarks is to prevent "passing off", that is, when a buyer is deceived. If the buyer wants a "fake" and knows they're getting a "fake", there is no passing off and there should be no trademark infringement.

Unless they've patented some aspect of the recipe, which I doubt is possible, I should be allowed to sell my "Joe Blogg's Perfume 123, chemically identical to L'Oréal XYZ, as verified by independent laboratories" and my "Joe Blogg's Perfume 123x, which we think smells very similar to L'Oréal XYZ". It may be in big business's interest, but it is not in the public interest to make these things illegal.

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Anonymous Coward

Grey Market again

Why a company has the right to produce anywhere while the consumer doesn't have the right to buy everywhere I will never understand.

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Ru
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"selling goods put on the market outside of the EEA and not intended for import"

I love this sort of thing. "We're huge and rich and we want to stay this way by charging you more than other people elsewhere in the world for the same product". The sooner this sort of government-sanctioned corporate theft is stopped, the better it will be for the rest of us.

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hrm

In a way I think that they should protect their users better. There's lots of fake Sony crap, make-up, etc etc, on ebay that shouldn't be there.

It's sometimes hard to tell if its real or not unless you're comparing it against the real thing.

Though I guess that's the price you pay for paying peanuts.

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Grey imports

I'm not very happy with this idea of "grey imports" being illegal. Say I go to Hong Kong and come back with a suitcase of laptops - not fakes - and pay the VAT and customs duties. Why on earth should I not be allowed to sell them? The argument seems to be that I need the manufacturer's agreement to use their trademark. But surely I can write "one Sony Vaio(TM), £xxx" and that's a legitimate and legal use of the trademark? My right to re-sell something that I own should not be conditional on how I (legally) came to own the thing in the first place.

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Anonymous Coward

Only a name

The danger of this ruling is that L'Oréal etc. go screaming to the EU claiming they cannot protect their brands and demand more control over the use of their Trade Marks (perhaps getting it slotted into ACTA).

It pisses me off that some of these companies that design in Taiwan, manufacture in Beijing, license the brand from Cayman islands, and have nothing but an administrative office in the US or EU seem to want others to protect their brands.

A brand that is just a name, is an extremely difficult/expensive thing to protect, and if they don't bring jobs to the EU and don't bring major earnings to the EU, then why would we spend money to protect their name for them?

So I like this ruling, I don't think others should spend their money to protect these 'brands' and if the brand had real substance behind it, that protection wouldn't be necessary. If the iPod name was stuck on any other MP3 player, it would not make that player comparable to an iPod, but with many of these 'gloop in a bottle' products, there is nothing special about the gloop.

I hope the idiots negotiating ACTA aren't fooled into thinking they can build an economy based on trademarks alone. We have to make the bags, shoes, gloop in the bottle, bottles, boxes and all the rest. The brand has to have substance behind it, it's the substance that IS the value in the product.

/rant.

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Flame

Restrictive practices?

I've never understood this "items not meant for sale within the EEA" thing. Why make a product and then restrict its market, and then complain when people sell it where there is demand but you don't want to sell it. Don't these people realise that grey imports where the product is not normally available are servicing a need and a market that is there. So why don't these companies stop their bloody complaining and sell their products to people who want to buy them, rather than making them go onto places like Ebay?

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Happy

Weird Maths

So, less than 5% of the items they bought were counterfeit? I'm amazed. Surely that shows that e-bay is not that bad after all?

17% of the items were 'not for sale'. What? Do they mean free gifts, test samples etc? Tough luck. Surely people have the right to sell something they legitimately own, whether or not it is marked 'not for resale'

Loreal's real problem is that nearly 50% of the e-bay sales are of grey imports. Well tough luck again. Corporations exploit globalisation - why shouldn't consumers?

Most interestingly though, what was the 287th product? Hopefully rounding error, because if it's not legitimate, not grey, not fake, and not a non-sale item - what on earth is it? :-)

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Unhappy

L'Oréal should rename itself L'Odfoad

“In its High Court case L'Oréal submitted evidence which showed that of 287 test purchases that it made on eBay, only 84 products were legitimate and intended for sale within the European Economic Area (EEA).

It said that the agency it employed to conduct the purchasing had not deliberately targeted auctions likely to carry fakes or grey imports, but that still 14 of the products were counterfeits, 49 were never intended for sale and 139 were put on the market outside of the EEA and not intended for import.”

First of all that’s 286 sales accounted for, what happened to the other one? 84 + 14 + 49 + 139. Less than 5% are fakes, I’m suppressed the figure for fakes is so low, not unless the test sales were specifically chosen from a bigger sample to prove some other legal point. Big company engaging in a legal case and ‘slipping’ something else into the book of evidence that can be used as a legal basis in other cases, I can’t believe that a large corporate entity would stoop so low

“49 were never intended for sale”

Well then, you shouldn’t be giving away so much free stuff then. Cosmetic companies will often give away relatively large amounts to freebies such as samples and even fancy handbags, tough shit on them then if somebody legally acquires some of their product and then wants to sell it on, it’s called the free market.

“139 were put on the market outside of the EEA and not intended for import”

Which is probably the real reason for the case, this just another multi-national whose idea of a free and open market is to produce their product is some third world company where they can pay the workers half a loaf of mouldy bread a day and then sell it in the first world for supernormal profits. This case is no different than that taken against CD-WOW, when a pigopolist company is trying increase is strangle hold on the market and force monopoly conditions with the big legal lie of infringement of trade marks

L'Oréal should rename itself L'Odfoad

"As the evidence in this case graphically demonstrates, eBay and its competitors have created a new form of trade….”

Holy Crap, a savvy Judge that recognises how the internet has changed methods of doing business in the world, quick get Mr Justice Arnold to deal with some of the case involving the MAFIAA.

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Anonymous Coward

It's simple really...

There's almost certainly more conterfeit and knock off gear sold at car boot sales and local markets than there is on ebay are L'Oreal going after the land owners and councils who run these sales? Of course not, if they did they'd get laughed out of court.

Or to look at it from a different angle if a shop in a shopping centre is selling dodgy gear is the owner of the shopping centre liable? No. Would L'Oreal think the shopping centre were liable. No they wouldn't.

So what's going on here. A charitable person would probably suggest that L'Oreal simply don't understand the internet and more specifically the workings of ebay. A cynic (who me?) might suggest that this is an opportunistic attempt to get ebay to fork over lots of money.

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Boffin

RE: "selling goods put on the market outside of the EEA and not intended for import"

Well, one reason other than pure avarice for charging more in different areas may be "now we've got this product, but ingredient X isn't allowed in this type of product, and the disclosures have to be changed, and it's going to cost us how much $$ and time in legal filings to get it cleared for sale in this new region?"

Believe it or not, most companies don't give a shit where you live and they don't single out geographies for price discrimination. If prices are consistently higher where you live, look at:

1. Shipping costs,

2. Legal costs and regulatory environment, and

3. Median income. Yes, they will jack up the price if they think you can afford it. They are in it for the money, after all.

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Alert

Court trolls

L'Oreal are patent trolls and court trolls -- always out to make an easy killing with their highly paid legal department.

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Pirate

@ Pirate Bay

"Much of the case was argued on the basis of European Union law, but the question of eBay's liability, both sides agreed, was not one that was harmonised at EU level, but was simply a question of the law in England and Wales."

I believe it was stated in the comments about the PB article, that if it was based on the laws of England, there would have been no case against PB.

However, as the PB guys didn't break any laws in their own country either.... It makes me sad that I am from the same country as the **AA facists.

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Anonymous Coward

companies don't give a shit - True

@Steven Knox

"Believe it or not, most companies don't give a shit where you live and they don't single out geographies for price discrimination. If prices are consistently higher where you live, look at:"

Ah! So that explains why a bottle of Irish whiskey is cheaper in Spain than it is in Ireland, the cost of shipping to Spain has to be added to the cost.

Oh! Hang on; I think there's a flaw in that argument

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erm ...

"I am satisfied that mere knowledge on the part of the supplier of equipment that it would probably be used to infringe someone’s copyright does not make the supply unlawful; nor does an intention to supply the market for such user."

erm ... napster ... et. al.

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EBAY ?

Why would anyone buy anything on EBAY sight unseen in the first place?

There are far far to many lawsuits about items sold on EBAY. I have purchased 1 item and it was as advertised and worked. Computer Software is at best a crap shoot.

Me, I stay away from gambling as the odds are stacked against you.

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Unhappy

Which side

Not at all sure which side I have less sympathy for: L'Oreal for trying to stop people re-selling stuff they have legitimate title to, just because it is the wrong part of the world, or EBAY who don't care about anything other than finding a way to get another cut of all the proceeds - how long before they insist that all of their fees get paid via PayPal, and therefore get a cut of their own charges.

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Anonymous Coward

@not for sale in the EEA

The only reason I could understand this for real reasons, other than financial greed, is where regional laws require the product to differ. For example if EU law requires the product to have different chemical composition to those sold in other regions.

Anything else is just male bovine excrement.

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