The closing arguments concluded on Tuesday, 11/20 after a week-long bench trial. The judge ordered the attorneys to submit briefs by Dec. 7. A bench trial is a trial conducted before a judge only with no jury. So the judge will serve as the judge and jury of this case. Bench trials are the best strategy when the issue is primarily a legal issue.During closing argument, Tiffany’s attorneys argued that eBay profits from the sale of the counterfeit products by taking a commission fee. In addition, eBay advertises that buyers can find Tiffany products on eBay’s site. Therefore, eBay is more than just a platform for linking sellers and buyers.
EBay’s attorneys countered that eBay never takes possession of the product and therefore cannot reasonably discern the authenticity of a product. Therefore, eBay did not contribute to Tiffany’s trademark infringement. As a business owner, I do not believe this. Resellers have long ago perfected the system for authenticating a wholesaler’s authority to distribute products. Wholesalers are required to product a certificate from the manufacture that the wholesaler is an authorized distributor. EBay could require sellers to submit or post on the site a copy of their certificate that Tiffany authorizes the seller to distribute its product.
Another authority on trademark law, Geoffrey Potter, mentioned the fact that eBay chose to set up its business in a way that makes monitoring the sale of illegal products difficult is not a defense.
Sharmil includes a stunning factoid: Tiffany concluded, before filing suit, that 73% of items advertised as “Tiffany” merchandise on eBay were anything but. Post-trial briefs are to be submitted after New Year’s.
NB: Searching the web for a fair-usable Tiffany image to use for this post, I discovered that Tiffany’s has much bigger problems than eBay in the trademark department! (“Dale Tiffany“?) But I guess that horse has left the barn.