The Victories Just Keep Rolling In For eBay
By: Ainsley Brown
First France, now the UK. The L´Oreal v eBay counterfeiting war goes on with yet another victory for eBay, this time in the English High Court.
In L´Oreal Takes eBay To Court I mused: While I will admit that I do not have the full particulars of the case, I just have a feeling that L’Orèal is going to win this one. But eh you never know… There is just no such thing as: a sure thing in litigation. I could not have been more wrong, well in part. I guess it’s a good thing I did the lawyerly thing by first admitting that I did not know the particulars of the case and secondly leaving open the possibility that pronouncement (read: lawyer´s educated guess, though we rare admit this point) could indeed be incorrect.
At the end of the day it would seem that eBay´s argument that it is merely a trading platform and is in no way directly involved in the sale of the goods, won the day over L´Oreal´s counterfeiting and consumer danger one. However (hey its law, there almost always is an however), if this is all you read from this judgment, you have missed two very important inter-related points.
The first is that while Judge Richard Archer did rule that eBay cannot be held responsible for its users´ actions, he did agree with L´Oreal that eBay could do more to prevent the sale of counterfeit goods. The judge went as far as suggesting, that is suggested not ordered, ten measures that eBay could take to beef up its anti-counterfeiting measures. These include requiring sellers to disclose their name and addresses in all listings and filtering auction lots before they are put on the site.
The second point, which flows from the first, is that any new anti-counterfeiting measures implemented by eBay would require a degree of co-operation from L´Oreal and other brands to be of any success. Just look at the measures suggested by the judge to see my point. This seems to be a consentient theme with these cases, as in their French skirmish, the French judge suggested this very thing.
The question now is, will L´Oreal and eBay kiss and make up or will they continues their war fought out in battles in courts all over the world?
This does not seem like a promising prospect any time soon, no matter how much the legal and better yet commercial sense it makes. Evidence: legal proceedings continue in both Spain and Germany.
Thanks again for keeping us updated on this very interesting issue. During the last days I sold some stuff on ebay – stuff with a brand. Ebay in Germany is doing a lot of things to ensure that the things sold on eBay are what they are supposed to be – genuine. For example you must be a so-called “qualified buyer”, that means you cannot be a new-time seller starting with selling branded stuff. Apart from that: In no marketplace a buyer can be completely sure that the stuff sold is a fake – so why should ebay be an exeption?
Carsten
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