The recent decision in Tiffany v. eBay, No. 04 Civ. 4607 (RJS), represents a thorough and well-considered exploration of the basis for finding secondary liability in the electronic marketplace for those who facilitate the sale of infringing goods without even selling a product and, conversely, the way for the maker of the marketplace to avoid liability for infringements by those who sell on its site.
Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
<i>Tiffany v. eBay</i>
The recent decision in <i>Tiffany v. eBay</i> represents a thorough and well-considered exploration of the basis for finding secondary liability in the electronic marketplace for those who facilitate the sale of infringing goods without even selling a product and, conversely, the way for the maker of the marketplace to avoid liability for infringements by those who sell on its site.
The issue of direct liability is tied to the scope of the defense of nominative fair use: the rights to advertise the availability of trademarked goods by the use of the trademark, whether or not some of the offered goods are counterfeit, and whether or not some or all of the trademarked goods have been diverted from the manufacturer/trademark user's authorized channels of distribution.
The issue of secondary liability is tied to whether or not it sufficed for eBay to be aware that Tiffany counterfeits were being sold on eBay. Tiffany argued that it
Read These Next
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Second Circuit Reinforces Bankruptcy Code Settlement Payment Safe Harbor
The Second Circuit affirmed the lower courts' judgment that a "transfer made … in connection with a securities contract … by a qualifying financial institution" was entitled "to the protection of ... §546 (e)'s safe harbor ...."