*The image is courtesy of Robert Caplin/Bloomberg News*
Tiffany & Co. has filed an appeal with the United Court of Appeals of the Second Circuit in its bid to prevent eBay from selling counterfeit goods on their website that bear the Tiffany trademark. Tiffany had lost this lawsuit in the lower court.
In an amicus brief submitted by the IACC (International Anti Counterfeiting Coalition) recently, eBay's contributory liability is put forth as a reason to overturn the lower court's ruling. eBay was put on notice of the presence of counterfeits by Tiffany & Co. since 2003. The IACC contends that when a marketplace operator becomes aware of the presence of widespread counterfeits in its marketplace, it has a responsibility to stop these transactions and also stop providing services to those responsible for such transactions.
"Robert Barchiesi, President of the IACC said, 'Counterfeiting is a criminal activity carried out on global scale and, with eBay turning a blind eye, broadly on the Internet. In fact, eBay is estimated to provide the forum for 29 percent of the entire online counterfeit market, which has widespread public health and safety hazards, as well as causing substantial economic harm to legitimate business. Therefore, we need to take vigilant action to prevent it.
It is not acceptable that today eBay still tolerates blatant counterfeits being sold on its website. The lower court's ruling in Tiffany's suit against eBay, if left to stand, would result in consumers continuing to be victimized, and place an impossibly onerous burden on trademark owners to police the eBay site on their own. Our brief asks the Court to recognize both eBay's contributory and direct liability as well as the pressing need to take action to protect consumers'" (http://www.marketwatch.com/news/story/international-anti-counterfeiting-coalition-iacc/story.aspx?guid=%7B4E0C060D-E5AA-43C0-8A49-961CE2CF6A39%7D&dist=hppr).
I must say that I agree. Since eBay is such a large online marketplace, it would place an undue burden on trademark holders to go around trying to catch every counterfeit item that is placed on the market. This would be impractical and nearly impossible for smaller companies that hold trademarks.
However, it is also placing an undue burden on eBay to require them to track every merchant that posts an item for sale. Since eBay uses a business model that leaves them as an uninvolved third party in the transaction, it is hard to figure out who can be held responsible (besides the individual actually selling the counterfeit item). It will be interesting to see if this amicus brief helps out Tiffany & Co. in its appeal. More on this case in the next few months.
Thursday, November 6, 2008
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2 comments:
ebay is FAR FROM an uninvolved third party!
ebay is so OVERLY involved that users are fleeing in droves, while yelling for help from anyone who will listen!
ebay has raised fees twice this year, while giving corporations free or nearly free listing (burying paying customers items), has set under-costs shipping caps, is FORCING the huge majority of it's users into it's "Paypal Only" policy, then is withhold those funds at Paypal's "sole discretion" for up to 180 days (ebay owns Paypal), has banned all sellers from giving HONEST feedback, is suspending sellers for being rated as "good" (4 pts on a 5 pt system), has set up new policies whereas buyers can receive refunds while keeping the sellers' items, and on & on.
The site is a COMPLETE MESS! so much so that a new petition has been started to remove ebay's CEO, John Donahoe. It can be viewed at http://www.petitiononline.com/mod_perl/signed.cgi?jdonohoe or can be found at onlinepetitiondotcom by searching, "Ebay Stockholders and Sellers Calling For Immediate Termination of John Donohoe CEO"
Another individual is collecting stories to present to ebay's Board of Directors at
http://www.myblogutopia.com/
ebay's own employees are up in arms over ebay's treatment of then, the site and it's users. Go to glassdoor.com, to read their comments and to view their extremely low, 22% approval rating on Donahoe.
PLEASE!!! Do some investigative reporting by reading ebay users own experiences throughout ebay's discussion boards, such as "Seller Central". Please note that ebay censors their boards and suspends many posters for posting the truth, so what you read there will only be a tiny fraction of what is REALLY being done to ebay users.
Dear Dorban:
Thank you for your comment. What I meant by ininvolved third party is that eBay is just the forum for sellers to reach buyers.
For example, when a seller posts something on eBay, eBay may never see, touch, or feel the merchandise. Contrary to other selling outlets, eBay does not control what is sold.
All of things you point out do not reflct actual inventory, but more so selling policies and how eBay controls money flow. I was referring to actual product quality assurance.
Thank you for reading my blog and I look forward to hearing from you soon!
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