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June 22, 2004

Tiffany's sues eBay under shaky TM theory for failure to police counterfeits

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Posted by Jason Schultz

Favorite first-breakfast jeweler Tiffany & Co. has filed a trademark lawsuit against eBay, claiming that it allows too many counterfeit Tiffany items for auction.

The lawsuit asks that eBay be stopped from listing any "Tiffany" merchandise that is not genuine and for eBay to account for profits it made on the sale of counterfeit Tiffany merchandise or else pay up to $1 million for each type of fake Tiffany merchandise sold on the Web site.

While I can understand Tiffany's outrage that as much as 73 percent of all listed items under their name are fake, the rationale for the suit seems to me increadible overbearing and expansive as a trademark theory, especially since everyone knows that eBay explicitly disclaims any knowledge of whether a particular item is authentic or not when you bid on it.

No one expects newspapers to police their classifieds like this; why should eBay be singled out?

Comments (4) + TrackBacks (0) | Category: IP Abuse


1. AdamThomas on June 22, 2004 1:47 PM writes...

Reading through the links, a similar case was decided when "Rolex filed a suit against eBay's German subsidiary two years ago, alleging that the site's customers sold fake Rolex watches. The suit, which eBay later won, sought an order to ban sales of Rolex watches on the site as well as financial damages." (link)

It sounds like Tiffany(R) is using the means available to police black/grey markets ( VeRO and maybe GenuOne).

It also sounds like the onus of authenticity is on the seller:
"Vero is eBay's system for deterring copyright infringement on its site. When the site gets a complaint, it cancels the auction and notifies the seller of the objection. It is up to the seller to prove that the sale is legitimate for it to be relisted" (link)
[sounds much like what has become common practice with ISPs and might allow for take-downs of false-positives]

I'm glad VeRo & GenuOne exist - I think on balance these services help protect consumers - but after having taken obvious steps to reduce the black/grey market I don't think eBay will end up bearing the brundt (other than, say, the legal costs and the initial loss in their stock price* ;)

*"Tiffany shares rose 21 cents, or 0.6 percent, to $37.94 on the New York Stock Exchange." (link)

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2. Ebay Stinks on June 23, 2004 4:41 PM writes...

Ebay needs to get serious about these types of violations. It is unrealistic to compare Ebay to classified ads considering the amount of bgus goods that are offered on Ebay everyday.
Sellers who repeat this type of activity should be permanently expelled from Ebay once they have been caught selling bootleg merchandise. Ebay should be considere as nothing more that a big building that houses many garage sales. Once the house can be shown to have many many illegal sales, it should be up to the building or house owner to eliminate the vermin.

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3. Dan on June 24, 2004 8:11 PM writes...

How is Ebay supposed to know which Tiffany items are real and which are fake? If they lose this case, the likely result would be that they'd use some automatic filter to ban all auctions with the word "Tiffany" in them, which would suppress both real and fake Tiffany jewelry auctions, as well as auctions of CDs by the '80s teen singer of that name.

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4. Nick on September 13, 2004 3:27 PM writes...

Thats not the point, Ebay are willfully letting these people get away with it. That's the problem. I have personally complained to Ebay on many occasions about a seller who routinely sells fake items. Oakley, Boss, Ferregamo, Mont Blamc, you name it, he gets it from Hong Kong and sells it as genuine. Buyers have complained to Ebay many times, and left negative feedback. What has ebay done about this seller? Nothing! Ebay is complicit in this activity because at least 50% of there income is derived from these types of counterfeit sales. It's about time Ebay was forced to police their own auctions seeing it is them that is making money from them. While there at it, ban people indefinitely who have been caight selling pirated goods - not let them carry on!!

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