Ebay Wins again!
In the latest round of battles against Ebay by companies suffering from counterfeits, a Belgian court found Ebay not liable to L’Oreal for counterfeits sold on its site.
At least three cases against Ebay in Europe have been litigated seeking to hold Ebay liable for infringing counterfeits, two which have ruled against Ebay. At issue is the European Directive that protects companies facilitating e-commerce, and how this Directive is interpreted. Interesting- Ebay’s position that it is only a passive provider of Internet “hosting” services persuaded the Belgium court, but not the French or German courts, in recent cases against Ebay.
In contrast, the U.S. courts are willing to accept Ebay’s position that it is insulated from liability, and place the burden of fighting counterfeits squarely on the brand holder, such as in the Tiffany v. Ebay decision. Tiffany strongly objects to this principle, and continues to fight on by announcing that they have filed an appeal to this decision to the Federal 2nd Circuit.
These conflicting decisions confuse brand holders seeking a quick resolution to their online counterfeit problem. For now, the never-ending cycle of sending take down notices for infringing items continues… although brand holders can expect a greater/quicker take down rate from websites seeking to avoid litigation costs and damages for infringement.