Should eBay be Held Responsible for the Sales of Counterfeits?

Posted on August 14, 2008. Filed under: eBay | Tags: , , , , , |

eBay has been in the courts quite a bit recently fighting the battle over the sales of counterfeit merchandise.  Tiffany, L’Oreal, Louis Vuitton and others are keeping eBay busy in the court system and the courts are divided over eBay’s responsibility in the battle to keep fakes off the platform.  And there have been lots of comments from sellers who are divided over whose responsibility it actually is to keep counterfeit merchandise off eBay.
Recently, I ran across one blog poster who asked if it was reasonable for Tiffany to sue any newspaper who lets an advertiser offer a counterfeit Tiffany item and whether a swap meet owner should be held accountable if a vendor sells counterfeit merchandise. 
I could make the argument that the newspaper charges ONLY an advertising fee and is, therefore, simply a venue and that eBay has a different standard of care because it is not just a venue.  eBay has a duty to prevent fakes because it charges both an “advertising” fee (insertion fee) AS WELL AS gets a percentage of the actual sale (final value fees).
As an analogy, assume you go on vacation and ask me to keep your automobile at my house while you are gone.  I gladly agree to do so for free because we are friends.  But if you paid me to keep your automobile on my property and something happened to the car in  your absence then I would be held to a different standard of care than if I just let you park it at my house for free.  In simple terms, I would have to be “more responsible” with the care of your automobile if you paid me.
That is why one could make the argument that the newspaper or a swap meet (which only charges for the space rental and does NOT get a percentage of sales) would have a different standard of care regarding fakes than would eBay who receives additional revenue every time a fake item sells on eBay.

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