Tiffany & Co. has sued eBay for allowing "fake" Tiffany jewelry to be sold via its auctions. Here's the Complaint filed in the Southern District of New York. Download file. eBay has programs rights owners can use to report infringing activities, but these put some burden on the rights owner to police the site and find the bad actors. Tiffany takes the position that eBay is profiting from the infringing sales and should undertake more of (all of?) the burden of enforcing Tiffany's rights. eBay quite reasonably does not want the burden of checking the authenticity and determining intellectual property cases with respect to every single auction. No reason to think Tiffany's is going after innocent sellers, but I'm aware of instances where rights owners have abused eBay's program to stop legitimate auctions of used, authentic goods, or licensed goods.
What's always interested me about counterfeit cases is the proof of what's going on in the head of the consumer. Trademark infringement requires likelihood of confusion, and my belief, in my heart of hearts, is that in the vast majority of cases, the buyer of counterfeit luxury goods knows perfectly well that they are knock-offs. It's a really interesting trademark issue. So, true confession. I've bought faux Tiffany goods on eBay, more than once. I'm not really into jewelry and think CZ looks just as good as a real rock, but I love stained glass, a la Louis Comfort Tiffany. And I love shopping on eBay. As I cannot afford the real thing on my public interest salary, I've searched for "tiffany lamps" on eBay and bought lovely reproductions. One is in my dining room and one is in my bedroom. They both have dragonflies. I searched for "Tiffany" because I thought that was the best way to find auctions of Tiffany reproductions, and indeed it was. I was never confused as to what I was getting. In short, the sellers were not using "Tiffany" to identify the source of the goods sold, but to identify the style of lamp they were offering, and that is how I understood it. I can't really speak to the jewelry auctions. Getting in the mind of the consumer is hard, but that's what the Courts have to try to do.
Tiffany Twisted over knockoff auctions
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