Tiffany appeals eBay counterfeit ruling

Company argues that trademark law does not impose a duty on Tiffany to police eBay's site.

Tiffany & Co. has appealed a US district court ruling that says eBay is not responsible for counterfeit goods sold on its Web site.

Tiffany filed its appeal in the United States Court of Appeals for the Second Circuit, seeking to overturn the trial court's failure to apply established principles of trademark law.

"We do not believe the law allows auction sites like eBay to continue to turn a blind eye to this problem while reaping profits from the listing and sale of counterfeit merchandise. Trademark law does not impose a duty on Tiffany to police eBay's site: eBay designed the site and has the responsibility to police it," said James Swire, a partner at the law firm of Washington-based Arnold & Porter LLP, in the statement.

EBay officials could not be reached for comment.

In an interview, Swire said Tiffany's arguments take into account previous circuit court decisions that ruled a landlord, for example, a flea market operator, who becomes aware that counterfeit goods are being sold at the flea market, has an obligation to investigate and take effective action against the sale of those counterfeit goods.

"If you look at a retail store, the same applies," he said. "Once a store owner knows there is a problem with counterfeiting, it has a duty to investigate and take action. In neither instance is there any obligation on the trademark owner to investigate what is happening on site at the flea market or the retail store. Yet eBay has set itself up, and the [district] court seems to have agreed, that Tiffany has an obligation to police eBay's site. We don't believe that obligation exists in law and we respectfully disagree with the district court decision."

In 2004, Tiffany & Co. sued eBay in federal court in New York, claiming that the company didn't do enough to keep counterfeit goods off its Web site.

EBay disagreed saying it did take steps to stop the sale of counterfeit goods through its Verified Rights Owners (VeRO) Program, which provides tools to help companies look for fake goods on the site. Under the program, if a company determines that a user is selling counterfeit merchandise, it notifies eBay, which immediately takes down the auction.

Last month Richard Sullivan, judge of the U.S. District Court for the Southern District of New York, ruled that Tiffany, and not eBay, was responsible for monitoring the eBay Web site for counterfeit Tiffany goods and for bringing those counterfeit goods to eBay's attention.

That ruling was seen as a major victory for eBay in its fight with luxury goods companies over the sale of their merchandise -- counterfeit or otherwise -- on its Web site. Although the judge said he was sympathetic to Tiffany's claims, he said the law was clear, and the burden was on the trademark owner to police its mark.

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Linda Rosencrance

IDG News Service

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