UPDATE: eBay prevails in Tiffany counterfeiting suit

In April we commented on Tiffany’s loss in the US Second Circuit Court of Appeals over its claims of direct and contributory trade mark infringement, trade mark dilution and false advertising against eBay for sales of counterfeit Tiffany products on the eBay website.  To view the history of proceedings in this case, you can read our previous post here.

 Tiffany appealed from the decision to the US Supreme Court.  On 29 November 2010, the US Supreme Court denied Tiffany’s petition that the case be heard before it.  The decision made by the US Second Circuit Court of Appeals stands without review.

 It is interesting that the Supreme Court has declined the opportunity to consider whether eBay, and other such online businesses, should be liable for trade mark infringement.  After all, as we’ve previously blogged, the liability of ‘mere hosts’ for trade mark infringement and the like is an important policy question of interest throughout the world.

 It’s hard to read too much into the Supreme Court’s decision, because reasons were not given.  That said, the Court obviously did not see any error in the decision below, which had focussed on eBay’s substantial and expensive enforcement program against potential law-breakers. 

 So, what can we take from this case?  At its highest, the decision may stand for the proposition that, in a US context at least, website hosts will not be directly liable for trade mark infringement by users of their websites, provided they are not ‘wilfully blind’ to the infringement of their users.  For the purposes of the Lanham Act (which governs trade mark law in the US), wilful blindness is equivalent to actual knowledge of trade mark infringement.  The decision contrasts with some European jurisdictions such as France, where Louis Vuitton was granted a large settlement against eBay in respect of similar claims.

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