eBay not liable for counterfeit Tiffany products sold in US

Tiffany has lost a legal action brought against eBay in which the jewellery shop sought to hold the popular online auction site liable for sales made of counterfeit products through its online platform. The 2^nd US Circuit Court of Appeals ruled that eBay was not liable as it had shown evidence of removing particular counterfeit items when this had been brought to its attention. However, it advised eBay in the future that it may need to warn users that certain products were fakes.

This case contrasts with different results in a similar recent case brought against eBay in France by Louis Vuitton. That case is reported here: http://www.mablaw.com/2009/12/ebay-louis-vuitton/. eBay has also had mixed success in other cases brought against it around Europe by the luxury brands. In a case brought by L’Oréal last year in the High Court, eBay was able to show that it was not responsible for counterfeit products sold by its users; but the Court went on to refer questions to the European Court of Justice to rule on whether use of L’Oréal’s brand in sponsored links to direct users to listings for infringing goods on its site constituted trade mark infringement and, if so, whether eBay had a defence under the E-Commerce Directive for acting as a mere host without actual knowledge of the infringing activity. We await that decision from the European Court.