Overview

Optional: The full Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2nd Cir. 2010) case

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Sometime before 2004, Tiffany became aware that counterfeit Tiffany merchandise was being sold on eBay’s site. Prior to and during the course of this litigation, Tiffany conducted two surveys known as “Buying Programs,” one in 2004 and another in 2005, in an attempt to assess the extent of this practice. Under those programs, Tiffany bought various items on eBay and then inspected and evaluated them to determine how many were counterfeit. Tiffany found that 73.1% of the purported Tiffany goods purchased in the 2004 Buying Program and 75.5% of those purchased in the 2005 Buying Program were counterfeit.

Contributory Trademark Infringement

The more difficult issue, and the one that the parties have properly focused our attention on, is whether eBay is liable for contributory trademark infringement—i.e., for culpably facilitating the infringing conduct of the counterfeiting vendors. Acknowledging the paucity of case law to guide us, we conclude that the district court correctly granted judgment on this issue in favor of eBay.

Contributory trademark infringement is a judicially created doctrine that derives from the common law of torts. The Supreme Court most recently dealt with the subject in Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). There, the plaintiff, Ives, asserted that several drug manufacturers had induced pharmacists to mislabel a drug the defendants produced to pass it off as Ives’. According to the Court, “if a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorily responsible for any harm done as a result of the deceit.” 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.

[W]e agree with the district court that “Tiffany’s general allegations of counterfeiting failed to provide eBay with the knowledge required under Inwood.” Tiffany, 576 F.Supp.2d at 511. Tiffany’s demand letters and Buying Programs did not identify particular sellers who Tiffany thought were then offering or would offer counterfeit goods. And although the NOCIs and buyer complaints gave eBay reason to know that certain sellers had been selling counterfeits, those sellers’ listings were removed, and repeat offenders were suspended from the eBay site. Thus, Tiffany failed to demonstrate that eBay was supplying its service to individuals who it knew or had reason to know were selling counterfeit Tiffany goods. Accordingly, we affirm the judgment of the district court insofar as it holds that eBay is not contributorily liable for trademark infringement.

Case Questions

For this assignment, you will submit a voice-over PowerPoint presentation. The presentation should include an introduction, conclusion, and reference slides. In addition, the presentation should include 3 to 5 slides of content based on supplemental research using scholarly resources. At a minimum, your presentation should answer the following questions. In addition, you should address two to three additional concepts based on your research. Cite all of your references using APA format.

 using APA formatting.

1. In defending Tiffany, how would you prove eBay is liable of contributory trademark infringement?
2. Following the policies established by eBay, what can other website owners and operators do when they find out a user has sold counterfeit products?
3. Discuss whether Tiffany could and should create its own online auction website to sell Tiffany products to compete with eBay. 

Assignment Submission

• Draft a PPT with 3 to 5 slides of content and recorded narration (The presentation should include an introduction, conclusion, and reference slides.)
• Utilize at least three (3) cited outside sources, using APA citation format
• Submit your completed assignment to Canvas

View RubricAssignment RubricAssignment RubricCriteriaRatingsPtsContent Qualityview longer description15 ptsFull MarksApply knowledge from coursework and/or outside resources in a manner that is coherent, thorough, and relevant to the topic. Clearly explain your argument/point. Provide evidence to support your argument/point.0 ptsIncomplete/not demonstrated/ 15 ptsOrganization and Presentationview longer description3 ptsFull MarksFollow basic rules of strong presentation skills, including a clear agenda, logical organization and transitions, clear and appealing slides, and recap of main points.0 ptsIncomplete/not demonstrated/ 3 ptsCitations and Spellingview longer description2 ptsFull MarksUse Proper APA formatting when citing your sources. Base your ideas on research or theory. When you use someone’s words exactly, quote, and cite. Check your document for proper grammar, formatting, and spelling.0 ptsIncomplete/not demonstrated/ 2 ptsTotal Points: 0

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