Tide, logic turn on eBay counterfeit cases
Choose the quote that was actually attributed to a leading business magazine:
- “If Ford shoulders too much of the burden, its ability to wring a profit from the sales of cars with easily-ignited gas tanks could be compromised,” wrote BusinessWeek.
- “If the financial institutions shoulder too much of the burden, their ability to wring a profit from the fees and interest generated by money laundering could be compromised,” wrote BusinessWeek.
- “If the Web companies shoulder too much of the burden, their ability to wring a profit from the sales or the advertising that appears alongside the commerce [in counterfeit goods] could be compromised,” wrote BusinessWeek.
Did you guess? Somehow I missed this:
The Swiss luxury watchmaker Rolex has lost an eight-year legal battle in Germany against eBay, the online auctioneer, over fake Rolex watches allegedly sold by third parties on eBay’s Web site, report a number of business press outlets, including Bloomberg News. . . .
The Feb. 24 German court ruling said eBay had removed counterfeit watches, was actively monitoring for flagrant trademark violations posted on it, and that Rolex couldn’t show that additional fake Rolexes were offered on eBay, after Rolex learned of the alleged sales, reported business media. A court spokesman was quoted in those reports as saying that eBay didn’t have to review every item posted on its site, “because it would jeopardize the whole business model.”
“If the Web companies shoulder too much of the burden, their ability to wring a profit from the sales or the advertising that appears alongside the commerce could be compromised,” wrote BusinessWeek.
What is the logic here? It’s okay to commit a tort, or tortiously contribute to it, because preventing the harm done — while technologically and administratively possible — could be expensive and upset your business?
Why is such reasoning applied to only trademark counterfeiting?
Why is eBay entitled to a presumption of staying in business, but asbestos manufacturers aren’t?
The problem for Tiffany is that American courts are simply flabby on this issue: They are easily swayed by the argument that it’s “just too hard” for eBay to “police” a million zillion auctions. “Just too hard,” though, really means “just too expensive” — but does eBay has a constitutional right to a billion dollars in profits on over $6 billion in revenues? . . .
There is no reason under that law that eBay should be allowed to profit so profoundly from creating a market in counterfeits, including a piece of the action for every sale of a fake that takes place.