Courts at odds on eBay’s role in policing fakes

What a difference a venue makes.

Just a week after a French court socked eBay with a $63.2 million bill for abetting the sale of counterfeit Louis Vuitton goods, the e-commerce giant emerged victorious from a very similar case in Manhattan brought by luxury jeweler Tiffany & Co.

Turns out, U.S. law is on its side on this one. Judge Richard Sullivan of the Federal District Court in Manhattan concluded that eBay had responded promptly to Tiffany’s requests to shut down individual sellers, but that it was not responsible for policing its entire marketplace.

“In determining whether eBay is liable, the standard is not whether eBay could reasonably anticipate possible infringement, but rather whether eBay continued to supply its services to sellers when it knew or had reason to know of infringement by those sellers,” Sullivan wrote.

“The result of the application of this legal standard is that Tiffany must ultimately bear the burden of protecting its trademark.”

That is in marked contrast to the ruling in the French court, which held that eBay needs to proactively police the millions of listing on its site to keep on the sunny side of the law. A German court offered a similar opinion in a case involving Rolex in April.

eBay, then, could be faced with the unhappy prospect of implementing different authenticity controls in different markets if the European rulings hold up. In a finger-wagging statement responding to last week’s ruling, eBay promised an appeal.

So the laws of the United States and France appear at odds. It happens. But after promising to issue a ruling “quite quickly” and then deliberating for eight months, did Sullivan really have choose *Bastille Day* to issue his decision?

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