Sandra Rierson, my colleague and co-author on Confronting the Genericism Conundrum, and I were emailing about the Tiffany v. eBay case the other day. She noted that the case furthers a mistake regarding contributory and vicarious liability. I asked her whether she’d like to write a special to Co-Op about the topic, and she agreed. So here is Sandy Rierson explaining an important difference in theories of liability.
Contributory Trademark Infringement in an On-line Marketplace
by
Sandra Rierson
The Second Circuit’s recent decision in Tiffany v. eBay addresses the issue of contributory trademark infringement in an on-line marketplace. Without even reading the case, you can probably figure out why the lawsuit was filed: fake Tiffany stuff being sold on eBay. The question is, whose problem is this? According to the Second Circuit, the answer is “not eBay’s.” Several people have provided excellent covered the details of the case. You can to Greg Lastowka’s, Rebecca Tushnet’s, or Eric Goldman’s respective blog posts about the case for the details and their thoughts.
To me, however, the most interesting aspect of this opinion is one that the parties did not even contest on appeal: whether the Inwood test for contributory liability should apply to on-line service providers at all. At trial, eBay argued that Inwood’s test for contributory liability should not apply to entities such as itself, which provide a service that is allegedly being used to infringe, rather than a product. eBay did not contest the applicability of the Inwood standard on appeal.
Even though the Second Circuit’s analysis of whether and when the Inwood standard should apply to service providers such as eBay is dicta in this opinion, it made me cringe nonetheless. In the eBay decision the Second Circuit adopts the standard set forth by the Ninth Circuit in Lockheed v. NSI for determining when Inwood applies to a service provider: “Direct control and monitoring of the instrumentality used by a third party to infringe the plaintiff’s mark” permits application of the Inwood test for contributory infringement to service providers. The Ninth Circuit was wrong when it articulated this standard, and it pains me to see the Second Circuit breathing life into it in this opinion.
The Ninth Circuit’s “direct control and monitoring” standard is incorrect as a matter of law and invites bad behavior as a matter of policy. By grounding applicability of the contributory trademark infringement doctrine on a determination of whether the defendant exercises “direct control” over the infringer, the Ninth Circuit (and now the Second Circuit) muddied and confused contributory and vicarious liability.
Vicarious liability, which does in fact turn on issues of control, is a form of strict liability that typically exists when there is a formal relationship – such as employer/employee – between the defendant and the tort feasor/infringer. If the defendant exercises sufficient control over the infringer and financially benefits from the infringement, then the plaintiff does not have to prove knowledge of infringement on defendant’s part to prove liability. Neither the plaintiff in Lockheed v. NSI nor eBay argued that the defendant was vicariously liable for trademark infringement.
Contributory liability, on the other hand, requires both knowledge (or intentional inducement) and enablement of infringement by the defendant. Inwood held that contributory liability exists when the defendant supplies a product to a distributor and intentionally induces that distributor to use that product to infringe, or has actual or constructive knowledge that the product is being used to infringe a trademark. Similarly, both the Ninth and the Seventh Circuit have held, in non-Internet contexts, that contributory liability for trademark infringement exists when the defendant “supplies the necessary marketplace” for infringing goods, with actual or constructive knowledge that they are fake. Moving the location of the marketplace from a swap meet at the Sports Arena to eBay’s on-line venue increases the volume of, but should not change the legal definition of, contributory infringement.
As a policy matter, tying contributory infringement to the extent of the defendant’s “control” over the infringer creates terrible incentives for the defendant. Basically, a rule that says defendants have no potential liability for contributory infringement if they exercise no control over the infringer encourages defendants to adopt a hands-off approach. Here, to eBay’s credit, eBay has not done so. It appears to have taken numerous steps to attempt to control counterfeiting/mark infringement on its website, at least when the fake goods are detected and identified by either the mark owner or the consumer. eBay has done so by contractually asserting control over the individuals who post goods on the eBay site. Ironically, those controls – which benefit the consumers who are being duped into buying counterfeit goods as well as mark holders – were used to demonstrate that eBay may be subject to contributory liability in this case.
Service providers like eBay should be subject to contributory liability for trademark infringement when they know that consumers are being ripped off by counterfeiters and yet they do nothing to stop it. The Second Circuit got it right, however, when it held that “knowledge” has to mean something more than being presented with a general study allegedly showing that a lot of fake stuff is being sold on the website. Consumers benefit from the secondary marketplace in legitimate resale goods (which Tiffany and other mark holders would probably prefer to eliminate), and therefore removing the marketplace altogether should not be the remedy here. eBay and others like it should have every incentive to address infringement and counterfeiting in the marketplace that they have created, but trademark holders also have to participate in policing their marks in the on-line world.
Sandra Rierson, my colleague and co-author on Confronting the Genericism Conundrum, and I were emailing about the Tiffany v. eBay case the other day. She noted that the case furthers a mistake regarding contributory and vicarious liability. I asked her whether she’d like to write a special to Co-Op about the topic, and she agreed. So here is Sandy Rierson explaining an important difference in theories of liability.
Contributory Trademark Infringement in an On-line MarketplacebySandra Rierson
The Second Circuit’s recent decision in Tiffany v. eBay addresses the issue of contributory trademark infringement in an on-line marketplace. Without even reading the case, you can probably figure out why the lawsuit was filed: fake Tiffany stuff being sold on eBay. The question is, whose problem is this? According to the Second Circuit, the answer is “not eBay’s.” Several people have provided excellent covered the details of the case. You can to Greg Lastowka’s, Rebecca Tushnet’s, or Eric Goldman’s respective blog posts about the case for the details and their thoughts.
To me, however, the most interesting aspect of this opinion is one that the parties did not even contest on appeal: whether the Inwood test for contributory liability should apply to on-line service providers at all. At trial, eBay argued that Inwood’s test for contributory liability should not apply to entities such as itself, which provide a service that is allegedly being used to infringe, rather than a product. eBay did not contest the applicability of the Inwood standard on appeal.
Even though the Second Circuit’s analysis of whether and when the Inwood standard should apply to service providers such as eBay is dicta in this opinion, it made me cringe nonetheless. In the eBay decision the Second Circuit adopts the standard set forth by the Ninth Circuit in Lockheed v. NSI for determining when Inwood applies to a service provider: “Direct control and monitoring of the instrumentality used by a third party to infringe the plaintiff’s mark” permits application of the Inwood test for contributory infringement to service providers. The Ninth Circuit was wrong when it articulated this standard, and it pains me to see the Second Circuit breathing life into it in this opinion.
The Ninth Circuit’s “direct control and monitoring” standard is incorrect as a matter of law and invites bad behavior as a matter of policy. By grounding applicability of the contributory trademark infringement doctrine on a determination of whether the defendant exercises “direct control” over the infringer, the Ninth Circuit (and now the Second Circuit) muddied and confused contributory and vicarious liability.
Vicarious liability, which does in fact turn on issues of control, is a form of strict liability that typically exists when there is a formal relationship – such as employer/employee – between the defendant and the tort feasor/infringer. If the defendant exercises sufficient control over the infringer and financially benefits from the infringement, then the plaintiff does not have to prove knowledge of infringement on defendant’s part to prove liability. Neither the plaintiff in Lockheed v. NSI nor eBay argued that the defendant was vicariously liable for trademark infringement.
Contributory liability, on the other hand, requires both knowledge (or intentional inducement) and enablement of infringement by the defendant. Inwood held that contributory liability exists when the defendant supplies a product to a distributor and intentionally induces that distributor to use that product to infringe, or has actual or constructive knowledge that the product is being used to infringe a trademark. Similarly, both the Ninth and the Seventh Circuit have held, in non-Internet contexts, that contributory liability for trademark infringement exists when the defendant “supplies the necessary marketplace” for infringing goods, with actual or constructive knowledge that they are fake. Moving the location of the marketplace from a swap meet at the Sports Arena to eBay’s on-line venue increases the volume of, but should not change the legal definition of, contributory infringement.
As a policy matter, tying contributory infringement to the extent of the defendant’s “control” over the infringer creates terrible incentives for the defendant. Basically, a rule that says defendants have no potential liability for contributory infringement if they exercise no control over the infringer encourages defendants to adopt a hands-off approach. Here, to eBay’s credit, eBay has not done so. It appears to have taken numerous steps to attempt to control counterfeiting/mark infringement on its website, at least when the fake goods are detected and identified by either the mark owner or the consumer. eBay has done so by contractually asserting control over the individuals who post goods on the eBay site. Ironically, those controls – which benefit the consumers who are being duped into buying counterfeit goods as well as mark holders – were used to demonstrate that eBay may be subject to contributory liability in this case.
Service providers like eBay should be subject to contributory liability for trademark infringement when they know that consumers are being ripped off by counterfeiters and yet they do nothing to stop it. The Second Circuit got it right, however, when it held that “knowledge” has to mean something more than being presented with a general study allegedly showing that a lot of fake stuff is being sold on the website. Consumers benefit from the secondary marketplace in legitimate resale goods (which Tiffany and other mark holders would probably prefer to eliminate), and therefore removing the marketplace altogether should not be the remedy here. eBay and others like it should have every incentive to address infringement and counterfeiting in the marketplace that they have created, but trademark holders also have to participate in policing their marks in the on-line world.
A federal appeals court here handed eBay Inc. (EBAY) a victory Thursday, upholding the dismissal of trademark-infringement claims by jeweler Tiffany & Co. (TIF) over the sale of counterfeit merchandise on the online auctioneer’s Web site.tiffany shop
In an opinion Thursday, the U.S. Second Circuit Court of Appeals affirmed a lower court’s decision that eBay can’t be held libel for trademark infringement for the sale of counterfeit items if it takes steps to remove infringing listings and isn’t willfully blind to such sales.
“…We are disposed to think, and the record suggests, that private market forces give eBay and those operating similar businesses a strong incentive to minimize the counterfeit goods sold on their Web sites,” wrote U.S. Circuit Judge Robert D. Sack.
“EBay received many complaints from users claiming to have been duped into buying counterfeit Tiffany products sold on eBay. The risk of alienating these users gives eBay a reason to identify and remove counterfeit listings. Indeed, it has spent millions of dollars in that effort,” Judge Sack added.
With the arrival of the New Year bell in 2010, so in the end how to treat the time for yourself? With the launch of new lady at TIFFANY festival, can let you series is a beautiful New Year!
Jean Schlumberger ring
The symbol of love Schlumberger Jean “X” the unique interpretation of symbols. 18K gold inlaid with platinum diamond circular green enamel. In the New Year unexpected surprise wearing absolutely!
TIFFANYKEY pendant
Tiffany gold hangs decoration, rich connotation. 18K gold with diamonds are round brilliant cut hangs decoration. The New Year opened heaven!
TIFFANY four ratios ring
Using gold XianJuan rope twisted into the chic design. JinBo 18K JinPu drill ring, round brilliant cut diamond. The unique design, fascinating.
TIFFANY VOILE pendant
Exquisite inlaid process. Platinum/round brilliant cut diamond pendants. With 16 inches necklace. Circular pendant reveals big style.
TIFFANY bracelet
Leisure, delicate, modern and elegant. With 18K gold round brilliant diamond cutting type medium bracelet.
TIFFANY envelope hangs decoration
Signature and seal, post, emotion among. 18K gold with diamonds are round brilliant cut hangs decoration. TIFFANY standard to the LOGO design, let you have a new chic must!
With the arrival of the New Year bell in 2010, so in the end how to treat the time for yourself? With the launch of new lady at TIFFANY festival, can let you series is a beautiful New Year!
Jean Schlumberger ring
The symbol of love Schlumberger Jean “X” the unique interpretation of symbols. 18K gold inlaid with platinum diamond circular green enamel. In the New Year unexpected surprise wearing absolutely!
TIFFANYKEY pendant
Tiffany gold hangs decoration, rich connotation. 18K gold with diamonds are round brilliant cut hangs decoration. The New Year opened heaven!
TIFFANY four ratios ring
Using gold XianJuan rope twisted into the chic design. JinBo 18K JinPu drill ring, round brilliant cut diamond. The unique design, fascinating.
TIFFANY VOILE pendant
Exquisite inlaid process. Platinum/round brilliant cut diamond pendants. With 16 inches necklace. Circular pendant reveals big style.
TIFFANY bracelet
Leisure, delicate, modern and elegant. With 18K gold round brilliant diamond cutting type medium bracelet.
TIFFANY envelope hangs decoration
Signature and seal, post, emotion among. 18K gold with diamonds are round brilliant cut hangs decoration. TIFFANY standard to the LOGO design, let you have a new chic must!
Although customized jewelry is easy enough to buy these days, there is simply something very special about owning your own piece of designer jewelry. Designer jewelry brings with it a legacy and a history all its own; when you own a piece of designer jewelry, it is like owning a piece of fashion history, and everything else that goes along with it. A case in point is Tiffany jewelry. Despite having been in business for more than 100 years, Tiffany jewelry is still in extremely high demand all over the world. The price may not always be reasonable, but the cache of owning a piece of Tiffany can make it well worth while for some.
Tiffany has many designer jewelry lines for all kinds of jewelry. Of Course, they all have the different styles.Diamonds by the Yard Tiffany jewelry is an elegant yet minimalist designer jewelry line well known for its sophistication and simplicity.
Tiffany jewelry has been in demand since 1845, when Tiffany and Co. first opened their doors as a trading house. Although the company originally specialized in silver goods and gift items, their silver jewelry designs are what earned them fame all over the world.
The reason TiffanyStyle.us has maintained its hold on the jewelry market for so long is simple – quality. It should come as no surprise that Tiffany jewelry is the most copied and replicated pieces of jewelry in the world; everyone wants a piece of Tiffany jewelry, even if getting one means settling for a fake, knock off version. You will find them in magazines, movies and even highlighted in engagement picture poses. Most jewelry designers aspire to be as associate with style and quality as Tiffany, and so many of the replicas of Tiffany jewelry that are out there are of very high quality – these designs gives non-Tiffany designers a chance to try their hand at the best.
Tiffany jewelry designs are available through authorized Tiffany mall online, Tiffany retailers and official boutiques. Individuals interested in purchasing Diamonds by the Yard Tiffany jewelry can visit a boutique or shop online at the official website, where a store locator can also help interested buyers locate an authorized retailer in their area. Because these designs are very simple they can be easily imitated, and buyers should be cautious about deals that seem too good to be true or offers from unverifiable merchants.
The high availability of knock offs can however make purchasing the real thing tough on some consumers. Because Tiffany fakes are so easy to find, it is also easy for people to get conned into buying what they think are Tiffany pieces that are really knock offs. There are a few ways to avoid Tiffany jewelry scams. For one, you can choose to buy only from Tiffany themselves.
You can also check the jewelry you are buying for the telltale Tiffany engraved emblem. You can also have your jewelry appraised by an expert. Any jewelry appraiser worth his salt will be able to spot a Tiffany fake a mile away. These tricks will help you stay ahead of the curve when purchasing Tiffany jewelry.
This prestigious jewelry line is designed by the renowned Elsa Peretti, an Italian jewelry designer who first joined the Tiffany cadre in 1974. For more than 30 years, she has been designing exquisite pieces, including Tiffany necklaces, Tiffany earrings, Tiffany bracelets, Tiffany rings, Tiffany pendants,and more. As a former model and a designer for other luxury companies such as Oscar De La Renta and Halston, Peretti uses her innate sense of style and elegance to create stunning jewelry infused with her belief that simple style can be the most outstanding. That celebration of the simple things in life is also the inspiration behind her Diamonds by the Yard jewelry line available at Tiffany & Co.
If you don’t have a Tiffany budget, look for good quality replicas in high end stores like Saks and Neiman Marcus. These replicas can be so good, only you will know they are not the real thing.
diamond ring tiffany hearts series
Welcome to More Tiffany. We are the best tiffany Jewelry Online Shop. LoginMy Cart Check Out All Tiffany Home About Us User Center Help Center Contact Us Testimonials Featured Tiffany Luxury Tiffany Jewelry : Tiffany Bracelets, Tiffany Necklaces, Tiffany Rings, Tiffany Earrings Tiffany & Co Jewelry 50-75% OFF
Featured Tiffany Jewelry Elsa Peretti Infinity Cross pendantElsa Peretti Infinity Cross pendant, SMALL SIZE. Sterling silver, on a 16″ chain. Original designs copyrighted by Elsa Peretti.Price:$42.90 Elsa Peretti Continuous Open Heart necklaceElsa Peretti® Continuous Open Heart necklace, mini. Sterling silver. 16″ long. Original designs copyrighted by Elsa Peretti.Price:$76.90 Elsa Peretti Open Heart lariatElsa Peretti’s most celebrated icon. Lariat with a cultured freshwater pearl in sterling silver. On a 19″ adjustable chain. Original designs copyrighted by Elsa Peretti.Price:$39.90 1837 Collection tag pendant1837 Collection tag pendant, hallmarked with T&CO and the year Tiffany was established. Sterling silver, on an 18″ chain.Price:$58.90 Elsa Peretti Cross pendantElsa Peretti Cross pendant, small. Sterling silver, on 17″ chain. Original designs copyrighted by Elsa Peretti.Price:$42.90 Elsa Peretti Cross pendantElsa Peretti® Cross pendant, medium. Sterling silver, on 16″ chain. Original designs copyrighted by Elsa PerettiPrice:$50.90 Tiffany Categories Tiffany Bracelets Tiffany Necklaces Tiffany Rings Tiffany Earrings Tiffany Cufflinks Tiffany Sets Tiffany Accessories
Luxury Tiffany Jewelry for Everyone
Welcome to Tiffany Jewelry Online Shop. We are leading supplier of Tiffany Jewelry including Tiffany Necklaces,Tiffany Bracelets,Tiffany bangles,Tiffany Earrings,Tiffany Rings,Tiffany Sets,Tiffany Accessories and other more. Everyone is entitled to be elegant and enjoy luxurious life. And MoreTiffany, a famous shop for Tiffany jewelries, lets all people, enjoy this kind of life by providing cheap Tiffany Jewelry.
AllHot Tiffany Jewelry list Engraved Heart Tag toggle link necklace$ 67.90view detail Engraved HEART TAG Toggle Bracelet$ 67.90view detail 1837 Collection cuff bracelet$ 76.90view detail 1837 hoop earrings$ 57.90view detail Return to Tiffany Heart Tag Charm Set$ 110view detail
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n lieu of a “miracle,” the First Baptist Church in Brattleboro, Vermont, will sell its stained-glass Tiffany window to facilitate the improvements and continuing operations of a homeless shelter.
Reverend Suzanne Andrews says the window may bring in over $100K, though she still hopes for an alternate option. The mirror was installed in the Vermont church 100 years ago as a memorial to a parishioner’s son-in-law.
From The Art Newspaper:
In November, the membership of the First Baptist Church in Brattleboro, Vermont voted 20 to four to sell the Tiffany work, which depicts St John the Divine, to raise funds for winter heating bills, the homeless shelter and repairs for a badly leaking slate roof. From December through March, the shelter gives 30 to 50 guests per night a hot meal, a sleeping bag and a warm place to sleep, said Sylvia Seitz, the church treasurer. The window, signed by Tiffany Studios and inscribed as a memorial to the son-in-law of a prominent church member, was installed in 1910.
tiffany shop
Soon Valentine’s Day, a wonderful time to give any gifts for people who you love. It does not need such an expensive car or a luxury villa. Even small gifts from far more significant meaning for the beloved.
On the day of general affection for the couple’s men and women express their feel so sincere and loving. A prize will be felt very complete for these expressions. But what kind of gift you want to give to your partners at Valentine.
Whether to give a rose or provide a new doll that funny. Must have been difficult is not it?! Giving a rose will never eternal why, because the flowers will wither over time, so of course did not last long life . When you give the doll some day it will be dirty, torn and smelly if it is too long. So you need to determine the type of long-lasting gift and its value will further increase. A very appropriate choice fell on the jewelry.
Today jewelry becomes an interesting stuff in every gift-giving occasion. Because the value of investments that never come down and have a long endurance high. So precious jewels and elegant in use for women. The Specific sites that sell jewelry that I recommend to shop online is tf-mart.com. tf-mart did not just sell any jewelry, they use a reputable brand as a product marketing of jewelry.
Tiffany & Co jewellry as a popular brand that has been recognized internationally since 1837. Tiffany & Co. the world-famous jewelry brand, has been famous for its diamonds and silver jewelry for two Centuries. tiffany is now present everywhere, including your home, now proudly presents by tf-mart product online. So wherever you are able to make purchases online. tf-mart accept payment by credit card only. Shipping process normally takes 12-48 hours. Delivery by Parcelforce. A tracking Number of the parcel will be sent to you after shipped out. Shipping fee is £ 6.99 per order no matter how many you purchase in the order at tiffany sale . The shipping fee will be auto-added in the grand total when you send the payment.
Visit tiffany jewellery to find your jewelry that you want. Make sure you buy a quality jewelry for your spouse feel and make sure it has been high investment value. Only in tf-mart a number one jelewellry online shopping centre.
tiffany shop
Wear them alone or pile them on
One of the world’s most renowned jewelers goes back to its roots with a charming collection of key Tiffany Pendants.
The archives of Tiffany & Co. contain carefully crafted, vintage keys used to open small, keepsake boxes and diaries, even private clubs and country manors. Others were encrusted with precious stones, made into brooches, and were awarded to officers and gifted to heads of state.
Now, each of these keys has been revived as pendants, bringing with them memories held dearly by skilled goldsmiths and silversmiths, and those of royalty who owned them. There are so many designs to pick from: starting with fine, ball- or oval-link chains, and metals such as 18k yellow, white or rose gold; platinum with diamonds or sterling silver. Hollywood’s A-listers Amy Adams, Kristin Scott Thomas, and Jessica Biel have been spotted wearing these treasured pieces, with the Quatrefoil, a medallion that’s of Celtic design, as tops on their list. Other designs include florals and hearts that will surely be bestsellers.
Tiffany & Co. is exclusively distributed by Rustan Commercial Corporation and is located at Rustan’s Makati and Rustan’s Shangri-la Plaza mall.
tiffany shop
You can buy or custom jewelry, designer jewelry, but their place in our culture. Tiffany & Co is a leader in fashion jewelry designers.
Designer jewelry has long been a part of our culture, and neither company is known as Tiffany & Co announced general named Tiffany, this company manufactures (Tiffany & Co Jewelry Silver) by 1845. Many people dream of having an expensive Tiffany jewelry and designer inspired many replicas and knock-offs over the years will serve to meet the demand for a cheaper version of this designer jewelry.
The first was the company Tiffany Tiffany co when Charles Tiffany bought the company began in 1853. Over the years, Tiffany has become an integral part of U.S. history, beginning with his participation in the civil war. In 1862, Tiffany surgical instruments, swords and other supplies to the Union Army (moved away from their line of luxury jewelry!). The company also revised Great Seal of the United States in 1885, and has created a model of China for the First Lady Lady Bird Johnson in 1968.
tiffany jewellery
