RICO Lawsuit against Ebay

[Peter_Spaeth]

Originally Posted by Exhibitman

Product manufacturers have tried and failed with suits against eBay in the past. See Tiffany Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010). A French court hit eBay in 2008, but that's not the USA.

Parris's firm lists itself on ads and its web site as a personal injury firm.

From a summary of the opinion. Perhaps this plaintiff has a stronger factual case.

Tiffany’s primary argument was that eBay was a contributory infringer because it continued to supply its services to the sellers of counterfeit Tiffany goods while knowing or having reason to know that such sellers were infringing Tiffany’s mark. Tiffany argued that eBay knew, or at least had reason to know, that counterfeit Tiffany goods were being sold far and wide on its website based upon the significant pre-litigation record of communications between the parties regarding the issue. It was not disputed that eBay was aware that some counterfeit Tiffany merchandise, as well as some legitimate Tiffany merchandise, was sold on its site. The issue became whether eBay’s generalized knowledge of trademark infringement on its website was to be construed as knowledge or constructive knowledge of the infringing activity sufficient to support a claim for contributory trademark infringement.

The Second Circuit found it was not and determined that for contributory trademark infringement liability to lie, a service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods. Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary for liability to attach.

Tiffany could not demonstrate that eBay was supplying its service to individuals who it knew or had reason to know were selling counterfeit Tiffany goods. The factual record established that in each instance where Tiffany gave eBay notice that certain sellers had been selling counterfeits, those sellers’ listings were removed and repeat offenders were suspended from the eBay site. The Court declined to find that eBay was liable for the trademark infringement of other non-terminated sellers of whom Tiffany had not provided notice to eBay.

[D. Bergin]

I can guess we can get ready for the new "My item is a counterfeit and I don't have to return it now" option from the Ebay robots.

from the posted article:

According to the complaint, "Plaintiffs are informed and believe that even more shocking is that consumers actually receive email notifications and eBay webpages from eBay encouraging the purchase of known counterfeit and fake products. When confronted on the counterfeit purchases, eBay directs consumers to mail counterfeits back to the seller as a mandatory condition for a refund. Returned counterfeits are easily recycled, re-listed and re-sold to unsuspecting consumers, and the buyer loses their only evidence of receiving a counterfeit," said Parris.